Opinion
DOCKET NO. A-4816-10T4 DOCKET NO. A-4817-10T4
03-28-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. G.T.M., Defendant-Appellant, and C.L.O., Defendant. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. A.D.M., Defendant-Appellant, and C.L.O., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF K.M.M., J.L.M., and D.T.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant G.T.M. (Angelo G. Garubo, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant A.D.M. (Eric R. Foley, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez, and Waugh.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-27-10.
Joseph E. Krakora, Public Defender, attorney for appellant G.T.M. (Angelo G. Garubo, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant A.D.M. (Eric R. Foley, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
A.D.M. (Angela) appeals the Family Part's order terminating her parental rights to K.M.M. (Karen), J.L.M. (Joanne), and D.T.M. (Donald). G.T.M. (Gary) appeals the termination of his parental rights to Joanne and Donald. They argue that the judge's decision was not supported by clear and convincing evidence in the record. Gary also argues that the judge erred in entering a default judgment against him for failing to appear at trial. We affirm.
We use pseudonyms to refer to the individuals in this case for the purpose of clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Angela's history with the Division dates back to 1989, when she was four years old and her mother was alleged to have neglected her. When Angela was a teenager, she was arrested for prostitution. In December 2002, when Angela was seventeen years old, she gave birth to her first child, M.A.H. (Mary). The Division took custody of Mary and placed her with her paternal grandmother. In March 2004, Angela gave birth to her second child, A.D.M. (Adam), who was designated "medically-fragile" when he was born and was placed in foster care.
During the time that the Division had custody of Mary and Adam, it provided Angela with services addressed to parenting skills, domestic violence, and mental health issues. Angela participated in therapy for abuse issues, and also attended a parenting program. Angela eventually agreed to relinquish her parental rights to Mary and Adam so they could be adopted. The Family Part entered the implementing order in January 2005.
Angela gave birth to Karen in December 2005. In November 2006, she gave birth to Joanne.
In March 2007, the Division received an anonymous telephone referral asserting that Angela, her sister, and Gary were fighting outside of Angela and Gary's apartment. According to the referral, when Karen walked outside, Angela yelled at her to go inside and then "threw" her back into the house. The caller also alleged that Angela and Gary fought often, smoked marijuana, let Karen outside without a diaper, put Joanne in a cardboard box to sleep, left food all over their counters and floor, and had mice infesting the home. The Division investigated the allegations and determined they were unfounded.
In May 2007, the Division was informed that Angela and Gary had both missed three appointments for evaluations by a drug-abuse counselor. Further drug evaluations were not scheduled at that time. During the summer of 2007, a Division caseworker checked on Angela, Karen, and Joanne regularly at the Volunteers of America Shelter where they were living.
In October 2007, the shelter notified the Division that it had referred Angela to ARC Family Intervention Program (ARC) in July. Angela attended parenting education classes and received home visits from ARC. At the time, Angela was pregnant with Donald. ARC was concerned for the baby's health because Angela was "considerably underweight" and missed prenatal doctor visits. She also had no plan to care for Karen and Joanne while she was in the hospital giving birth. Gary was unavailable because he had recently been arrested and was in jail.
ARC also advised the Division that Angela needed help with child safety, development, nutrition, and discipline. Angela fed Joanne, who was less than a year old, inappropriate foods such as pizza and sandwiches. When the ARC worker told Angela that the sandwiches posed a choking hazard, Angela "insisted that [Joanne] has no problem" eating them. Angela also said Joanne should go on a diet and eat only twice a day because she was overweight. ARC further advised the Division that it was "difficult" to teach Angela parenting skills because she believed "she already knows everything."
At about the same time, the Division received a call from an anonymous individual who expressed concerns about the children's nutrition and overall health. The caller also questioned whether Angela had taken the children for immunization shots. In addition, the caller noted that Karen had hearing problems.
The day after this call was received, a Division worker met with Angela. She admitted that Karen and Joanne were not up-to-date on immunizations. She also told the worker that Karen needed help with speech and that she had not taken Karen to a hearing specialist because she was waiting for her long-term Division case worker to arrange for transportation to the appointment. Although the children's doctor was only three blocks away, Angela told the worker that it was difficult for her to get there with the children, especially in the final trimester of her pregnancy. The Division substantiated the allegation of medical neglect against Angela.
Also in November, Angela told the ARC director and social worker that she had "gotten rough" with Joanne one night because Joanne had been up crying and screaming. Angela insisted, however, that she would never harm her child. The ARC staff noted that much of Angela's focus was on helping Gary get out of jail. Angela explained she needed his help and wondered "how she [could] keep doing this" on her own.
During an ARC home visit later in November, Angela was stressed and again spoke mostly about Gary. When Joanne tried to get Angela's attention, Angela ignored her and continued to talk about Gary. Joanne put numerous small items in her mouth, including a "3 inch piece of plastic from a trash bag, pieces of book covers from biting the books, cardboard, fur from fuzzy slippers, and string." The ARC worker had to remove the objects from Joanne's mouth because Angela was not paying attention. When the worker explained to Angela that the items were choking hazards, Angela responded that she had been told it was normal for infants to put things in their mouths.
The following week, an ARC worker visited Angela's home and reported that the children were not clean. They had mucus running from their noses, their faces were dirty, and their diapers had not been changed from the prior evening.
Angela gave birth to Donald on November 24. She and Donald were released from the hospital two days later.
On November 27, two Division workers and a nurse went to Angela's apartment. An ARC worker and Angela's step-father were there when they arrived. Angela was trying to change Donald's diaper while Joanne sat on the floor crying uncontrollably. Angela said that Joanne wanted to be held. One of the Division workers picked up Joanne and tried to calm her, without success.
Both Division workers and the ARC worker noticed that Joanne's feet were red. The ARC worker said she had never seen the child's feet that red before, but Angela insisted they were always red. The nurse checked Joanne's feet, stated that they appeared to be burned, and said Joanne "should be seen by a doctor as soon as possible."
The Division worker asked Angela if she had placed Joanne in the tub feet-first. Angela "gave [the] worker a crazy look" and said "no." Angela told the worker that she had tested the water first, put Joanne into the tub, and then put Karen into the tub. According to Angela, Joanne did not cry when placed in the tub. The worker found no unusual marks on Karen's body. The worker also spoke to Angela's step-father, who reported that Angela had left the children unattended in the tub.
The Division determined that immediate removal of the children was necessary. The workers took all three children to the hospital for examinations. Doctors determined that Joanne had first- and second-degree burns on her feet. Karen was "healthy," but needed a "follow up appointment due to failure to thrive." Donald had jaundice and was admitted to the hospital. The girls were placed in separate foster homes. The following day, Donald was placed in a third foster home.
The Division filed a complaint for custody of Karen, Joanne, and Donald on November 29, naming Angela, Gary, and C.L.O. (Carl) as defendants. The Family Part granted the Division's custody request the same day.
Prior to this time, paternity testing had determined Carl was Karen's biological father. Carl visited with Karen on a number of occasions in 2010. He participated in early stages of the litigation and was represented throughout, but has not appealed the final order terminating his parental rights.
On November 30, Angela told a Division worker that she might have placed Joanne in the tub before she turned on the water. She nevertheless maintained that it was an accident and that she was a good mother. When the worker explained to Angela the steps required for reunification, she appeared to pay little attention. Angela continued to say that the incident was an accident, she was a good mother, and she hoped the judge would see this and return the children to her. The worker concluded that Angela had little understanding of the medical needs of her children.
Division workers explored with Angela the placement of the children with relatives, but none were appropriate at the time. Gary's mother had a long history with the Division, during which he and his siblings had been removed from her care and his mother had lost parental rights to her children.
Angela was informed that she had to cooperate with services and undergo a psychological evaluation before reunification could occur. She was cautioned that the Division would pursue adoption if reunification was not achieved within twelve months.
By mid-December, Gary was released from jail and placed on probation. ARC began to provide Gary with instruction on parenting and child safety, and continued its services to Angela. ARC described Angela's demeanor as "somewhat unrealistic" and reported that Angela believed the children would be returned to her for Christmas.
In December, a doctor diagnosed Donald with a number of conditions requiring regular medical monitoring. Donald had "extensive" hemangiomas, benign tumors, on his skin, inside his ear and nose, and on his liver and spleen. The doctor prescribed steroids, which appeared to alleviate the condition. The doctor also identified a gastrointestinal problem that might later require surgery.
In January 2008, Norman Schaffer, Ph.D., conducted a parental-fitness evaluation of Angela, who was then twenty-two years old. She presented as "emotionally labile, shifting among emotional states of bounciness, anger, sadness, and pleading." She told Schaffer that at age thirteen she was hospitalized for anorexia. Angela related a history of abusive relationships and depression, and attributed her current depression to the Division's removal of her children. She also told Schaffer that she had attention deficit hyperactivity disorder and that she did not treat it with medication. Angela insisted that she was a good parent and asserted that worse parents did not have their children removed.
Schaffer administered a variety of tests. He reported that Angela's "solutions" and "understanding of the child's issues, were barely adequate" on the test for parental problem-solving techniques. Angela scored below average on the intelligence test, but not within the mentally retarded range. The results suggested that Angela had the ability to learn from her experiences and that her troubles did not stem from lack of intelligence. Schaffer concluded that Angela's answers to the personality test were "invalid because she did not admit that she had problems and [she] emphasized only her strengths."
Schaffer recommended that Angela undergo a psychiatric evaluation because he suspected she might have bipolar disorder, clinically significant depression, or posttraumatic stress disorder. He recommended supervised visits between Angela and her children "in a structured setting."
On January 28, Joanne was moved to the foster family that seeks to adopt both her and Karen. The family consists of a husband, wife, and their two sons. The Division placed Karen in the same home six months later.
In January and February 2008, ARC continued to educate Angela and Gary on parenting and child safety, and conducted in-home visits. ARC provided updates to the Division, which supervised Angela and Gary's visits with the children.
The Division worker observed that Angela and Gary did not meet all of their children's needs during their first three supervised visits. For example, during one visit, Donald soiled his diaper, and rather than change him, Angela "just sat there saying he 'made stinkies'" while the nurse changed him. During another visit, Angela did not change Karen's diaper, stating "she may just be wet." The worker explained that the children's diapers needed to be changed whether they were wet or soiled. Angela and Gary did not feed the girls their snacks during two of the visits.
Beginning in March, Angela and Gary's housing situation became unstable. The landlord-tenant court stayed eviction proceedings against them temporarily. Gary had been admitted into a drug-court program in March, and was voluntarily attending a family-intervention program. On April 9, however, Gary returned to jail because he failed a drug test. On May 7, he entered an inpatient drug treatment program, which he completed a month later. In the meantime, Angela lost the apartment. The Division began working with the county social service department to secure housing for Angela and the children.
While Gary was in the inpatient program, Angela attended some of ARC's parenting classes and workshops on her own. ARC noted that Angela was "easily distracted" and had difficulty focusing. At times, she was dismissive, indicating she already knew what ARC was teaching her. However, she was able to remember portions of the material covered in the classes.
Angela also complained that she had difficulty making the appointments scheduled by ARC and the Division because she did not have transportation. The Division provided her with bus passes to address this need.
By late May, Angela and Gary had ended their relationship. As a result, they occasionally made snide remarks towards each other or fought verbally during their visits with the children. By June, Angela had a new boyfriend, P.C. (Peter), whom she brought to family visits without first obtaining permission. Angela's request that she and Gary have separate visits was granted.
Karen's hearing had improved by June because she had tubes inserted into her ears. She had learned to feed herself, had gained weight, and was speaking more. Donald had also improved. He was vomiting less, smiled and played, and had a strong grip. He still had digestive problems, and his crawling was strained because his back muscles were weak.
In July, ARC gave Angela a certificate of completion for the parenting classes. On the final assessment, she did well on the child development and yes/no questions, and satisfactorily on the discipline section. Nevertheless, ARC advised the Division that the certificate only certified completion, not proficiency.
On August 8, Schaffer conducted a parental-fitness evaluation of Gary. Gary admitted that he had trouble with drugs and alcohol, but downplayed three felony convictions that appeared to be related to his drinking. Gary denied having a history of violence. He also stressed that the Division had made no allegations against him, pointing out that the children were removed because of Angela's actions.
Schaffer found Gary's answers to the parental problem-solving questions to be "more than adequate." Schaffer could not assess Gary's personality functioning because his answers to the psychological test "emphasized his strengths and minimized his weaknesses." He concluded that Gary's "compliance with his parole or probation, which includes compliance with his substance abuse treatment, will determine his availability as a parent." He recommended that Gary participate in Alcoholics Anonymous or Narcotics Anonymous, attend the same group consistently, and work with a sponsor. At the time of the evaluation, Gary was taking part in outpatient drug and alcohol treatment at Maryville, Inc., and he continued to attend this program after Schaffer's evaluation.
As of September, Angela was living at Peter's home. The Division attempted to schedule a home inspection to determine the suitability of the living arrangements for reunification of the children with Angela. Peter refused to allow the inspection, explaining that the judge had "disrespected" him by believing Gary when the latter "smeared his name at court." Angela later told the worker that the children could not visit or be reunified with her at Peter's home in any event, because the home was unsafe due to Peter's computer equipment. She reiterated her goal of getting her own apartment. The Division continued assisting Angela in finding suitable housing.
During the fall of 2008, Robin's Nest Family Ties Program (Robin's Nest), which had assumed responsibility for supervising family visits, reported that Gary was appropriate with the children during visits, showed them affection, and met their needs. After one visit, the monitor opined that Karen and Joanne "share a strong bond" with Gary and "were very happy spending time with him." A monitor also observed that Gary was "very loving and gentle" with Donald. Robin's Nest recommended that visits take place at Gary's home as soon as he secured an appropriate apartment. Gary was also complying with outpatient drug treatment.
Robin's Nest reported in October that Angela and her children "share a strong bond," Angela "was very loving towards her children[,] and the children were very happy to be spending time with her." Workers also noted that Angela "display[ed] appropriate parenting skills and provide[d] for her children's needs."
In late October, the Division approved visitations of the children with Angela at Peter's home. Robin's Nest began supervising weekly visits there in November. Visitation supervisors observed that Angela demonstrated appropriate affection and supervision, provided suitable toys and activities, interacted and played well with the children, appropriately redirected or disciplined the children when needed, fed and changed the children, and made recommended safety adjustments. However, they expressed concern that she sometimes stopped monitoring one or two children while tending to another child, or relied on assistance from the Robin's Nest staff or nurse. The supervisors noted that Angela still failed to recognize safety hazards. For example, during the March 4 visit, Angela gave all three children a bath at the same time. When Donald cried, she lifted him up and sat him on the floor. He fell backwards, hitting his head.
Robin's Nest reported that Angela was better able to care for the children's needs with Peter present, and that when he was not there, she was less organized and "had a hard time supervising all of the children at the same time."
On January 15, 2009, Angela attended a psychiatric evaluation with William Ranieri, D.O. Angela told him that the Division removed her children in November 2007 because Gary told the workers that she was crazy. She then admitted that Joanne's feet had been burned when she left the children unattended in the tub. Ranieri reported that it was difficult to redirect Angela to different topics.
Angela told Ranieri that she had a personality disorder, but she could not explain what she meant by that. She described herself as depressed and insisted that her children's removal was the only cause of her depression. She related she had been diagnosed with ADHD as an adolescent, but claimed she had really just been lazy. Angela had been prescribed medication, but refused to take it because her sister, who had been on Ritalin, had inflicted twenty-five knife wounds to her own head. She told Ranieri that her uncle had committed suicide, and that her mother, grandmother, sister, and aunt had been hospitalized for psychiatric illnesses. Angela also reported that she had been raped at ages seven and eight by a friend of her mother, and that she was anorexic from ages ten to thirteen and received therapy.
At the time of her interview with Ranieri, Angela had no relationship with her sister and biological father, and spoke to her mother only once every couple of years.
Ranieri concluded that Angela had ADHD and "Adjustment Disorder with mixed disturbance of emotions and conduct."
In February, the Division inspected a three-bedroom apartment secured by Angela, and found it appropriate for the children. Angela's visits with the children were moved to this location. Both Peter and Angela informed the Division that Peter would be keeping his own apartment, and at the February compliance hearing, the judge ordered that Peter should not be present at the children's visits or doctors' appointments. Gary obtained a one-bedroom apartment. The Division worker concluded that the apartment was too small for the children to live in, but was big enough for visits.
Although the children had been in foster care for more than a year, the Division worker told Angela that the judge had granted her additional time to demonstrate that she could safely care for the children and be reunited with them. Around the same time, Angela completed CPR training, as the Division had requested.
On March 6, 2009, Angela underwent an adult mental-status examination administered by Jo Anne González, Ph.D. Angela told González that she had been raped when she was eight years old and that she received counseling. She was placed in special education classes in grade school, and graduated from high school. Angela related her last employment was as a dishwasher in 2005. She left that job after six weeks because she was pregnant. Prior to that, she had been a food server at a fast food restaurant, but was fired after four weeks.
Angela told González that she could groom herself, do laundry, and clean her home. However, she had difficulty cooking and following instructions. She was unable to shop for food or clothing, and had difficulty understanding the value of coins and paper money. She was unable to obtain a driver's license because she did not pass the driver's test.
Angela stated that she had never used illegal drugs, did not drink, and had never been arrested. She said she was depressed because the Division took her children away. She suffered from anxiety and "intense irritability." She had difficulty concentrating, was easily distracted, and "tend[ed] to shake, yell and blackout."
González reported that Angela was underweight, her "motor behavior was restless," and her "speech was pressured." Her eye contact was appropriate and her voice was clear. "She presented no expressive or receptive language problems." Her "memory skills were mildly impaired," and her "[a]ttention and concentration skills were impaired." She could count, but was unable to do simple calculations. Angela's insight and judgment were "poor." González estimated that Angela's intellectual functioning fell "within the deficient range." She recommended that Angela consider therapy and receive a "psychiatric consult in order to consider the use of medications."
In March, Robin's Nest reported that Gary had continued to show appropriate affection to his children and had generally met their needs during visits. However, he seemed to give up easily when it came to feeding Donald and taking the girls to the bathroom. He requested unsupervised visits with the children, but the Division advised that he should first complete a CPR class and meet with a nurse to discuss the children's medical needs and demonstrate that he would know what to do if something happened to the children during a visit.
Karen started having seizures in April. The Division engaged a nurse to accompany her to visits because she required immediate medical attention if she had a seizure. Also in April, Robin's Nest reported that Angela was still unable to supervise the children adequately. The primary concern was her inability to recognize and understand safety issues. For example, Angela had placed Karen in a highchair without securing the belt, and Karen nearly fell out of the chair. Angela left Joanne unattended in the bathroom while the tub was full of water, insisting that Joanne would not get into the tub on her own. While in Angela's care, Donald found small objects on the floor and put them in his mouth. The nurse and the visitation facilitators took the objects from Donald and told Angela what had happened, but she replied that "her home was baby-proofed and safe."
Because neither Angela nor Gary had progressed to unsupervised visits by the end of April, Robin's Nest discontinued visitation supervision services for both parents. In addition, Gary had missed visits in April and failed to complete CPR training or meet with the nurse about the children's needs because he was again incarcerated.
In February, Angela had applied for Supplemental Security Income (SSI) from the Social Security Administration, and on April 30, Lawrence G. Mintzer, Ph.D., evaluated Angela in connection with her application. Angela told Mintzer that her last job was in 2004 and that she could not work because she had difficulty reading, writing, concentrating, understanding people, and counting money. She had "somewhat poor" impulse control and sometimes threw things when she was angry. She had a history of seizures, but had not experienced one in about five years. She was not taking any medications. On the intelligence test, Angela scored within the borderline-retarded range.
The initial application was subsequently denied.
Mintzer concluded that Angela "presents with serious intellectual deficits and psychological problems as well. These deficits and problems are sufficiently great enough to interfere with her capacity for independent living." "Overall," her "limitations are severe in degree" and prevent her from "manag[ing] her personal funds in a competent manner."
Gary resumed visits with the children in late May. According to the Division worker, he was interacting appropriately with the children. Angela arrived towards the end of one of Gary's visits. The worker became concerned when Angela tried to paint Gary in a negative light in front of the children.
On May 21, 2009, New Point Behavioral Health Care conducted a biopsychosocial assessment of Angela. Angela reported most of the same background information she had given other evaluators. When asked to describe her social support, she answered, "I don't have anyone." She also indicated that she was having financial problems.
On July 1, Angela requested reconsideration of the denial of SSI benefits. In her renewed application, she explained that her learning difficulties, ADHD, mild retardation and personality disorder, among other issues, kept her from maintaining steady work. She related that she could not read or write well. She further explained that she did not socialize and that she became frustrated and anxious around people.
Angela testified that her SSI application was eventually approved in late 2010 or early 2011.
In July 2009, the Revitalizing Environment through Nurturing Unit (RENU) of the Center for Family Services, Inc., began supervising family visits. The parenting coach felt that Angela "spent a lot of time at the visit trying to impress" her. She also reported that Angela said, "I know how to do everything already." Following a visit later in July, RENU reported that Angela failed to recognize potential dangers to the children and remained unwilling to accept instructions from the worker. For example, when Angela ran a bath for the children, the parenting coach noticed that the bathmat was wet. The coach asked Angela to remove the wet rug. Angela did so, but failed to replace it, and Joanne subsequently slipped on the wet floor.
At the beginning of August, a RENU worker discussed safe and healthy foods for the children with Angela, particularly for Karen and Donald, who had trouble swallowing and chewing. The worker underscored that Angela needed to have the children seated in such a way that she could see all of them when they were eating.
In late August, Donald's foster mother requested that twenty-month-old Donald be removed from her home. She reported that he had been digging in his diaper, eating his own feces, eating the crib mattress, and chewing on the crib. She told the Division worker the only time he did not cry was when she was with him or when he was in his crib. The division placed Donald in a new foster home in September.
Gary was again incarcerated in August or September. He was released by late October and resumed visitation with the children in November.
In September, Angela's neighbor told the RENU worker and the nurse that Angela did not live in her apartment, that she only went there for visits with her children, and that she used drugs there. The Division worker questioned Angela about drug use, which she denied. The worker also asked Angela about her history of seizures, which Angela described as "staring seizures." The worker concluded that Angela did not appreciate the risk that a potential seizure could pose to her children, but noted that Angela agreed to have a neurological examination.
In October, the Division requested that the Family Part change the permanency plan from reunification to termination of parental rights followed by adoption. After reviewing the evidence to date, the judge entered the revised permanency order on November 19.
In autumn of 2009, Donald's new foster mother reported significant improvements in his behavior and development. He was learning to play with toys, eating well, and beginning to walk with the help of orthotics. His foster mother told the Division she would be interested in adopting him. Karen and Joanne's foster parents reported that they were also doing well, although the foster mother asked to have Karen tested for autism because she displayed characteristics of that condition.
On December 3, a RENU worker supervised a visit at a restaurant so that Angela could celebrate Donald's second birthday with her children. The worker opined that the "visit did not go well." At the restaurant's play area, Karen climbed to the top of a Sky Tube sliding board and became upset when she could not find her way out. Angela did not go to Karen's aid until she was prompted to do so by both the nurse and the RENU worker. When the RENU worker returned the girls to their foster mother, Joanne hugged her foster mother and said, "This is my mommy."
In mid-December, the RENU parenting coach reported she had "not seen any improvements towards reunification." The following month, the RENU worker wrote to the Division that in her opinion,
[Angela] appears to have much difficulty parenting all three of her children at one time. She has difficulty preparing meals that are suitable and healthy for her children. She seems to pay a lot of attention to her 2 daughters, but not with her son [sic]. She does not understand when her children need her, and does not respond well to them.The worker concluded that Angela was "not capable of keeping her children safe."
In January 2010, the Division notified Carl it was seeking to terminate parental rights to Karen and that she had been in the Division's care since November 2007. Carl informed the worker that, although Angela had told him that Karen was his child, she would not allow him to see her.
On January 7, the Division filed a complaint to terminate Angela's, Gary's, and Carl's parental rights, alleging that none of them could provide the children with a safe, stable, and nurturing home.
Also in January, Gary was incarcerated for failing a drug test. He was released at the end of the month and resumed outpatient drug and alcohol treatment in February. He had five family visits in February and March, during which he interacted appropriately with the children, fed them, played with them, and changed their diapers when needed. Gary was again incarcerated from March 31 to April 23. His last visit with the children took place on March 22. Gary cancelled an April 27 visit and subsequently stopped communicating with the Division. He also failed to attend a scheduled bonding evaluation. In early May, a probation officer informed the Division that Gary was missing and that a warrant had been issued for his arrest.
Angela continued to have supervised visits with the children from February through July. A nurse notified the Division that the February 18 visit between Angela and the children "went very poorly" and that Angela "basically threw [Joanne] into her car seat."
On April 1, Angela and Peter visited the children. They devoted most of their attention to Karen and did not bring enough food to feed all three children. During another visit that month, Angela and Peter brought each child a toy, but played mostly with the girls.
The Division continued to note problems during visits. Angela would bring insufficient and unhealthy snacks for the children, pay little attention to Donald, and attempt to persuade Karen to ask to be reunited with Angela. For example, at the end of one visit, Angela told the worker that Karen had told her that she wanted to go home with Angela and Peter. The worker, who had been close to them throughout the visit, did not hear Karen say this. On the ride home, the worker asked Karen if she had told Angela and Peter that she wanted to go home with them. Karen replied no, she wanted to go home to be with her foster family.
During the same visit, after Angela took Joanne to the bathroom, she told the nurse and worker that Joanne had a little blood in her stool. When the worker and the girls arrived at the foster home, Joanne cried to her foster mother that her "butt hurts." The foster mother told the Division worker that every time Joanne returned from a family visit her bottom was red. The foster mother checked Joanne and found that she had soft stool in her underwear and on her bottom. The worker concluded that Angela had not properly wiped her after she used the toilet.
On May 27, when Peter was playing on the floor with Karen, she said, "Yeah, I come home," and Peter replied, "I am doing my best to get you home." The worker told him that he was not to talk to the children about the litigation. Peter raised his voice with the worker, stating that these were his children and that the goal was reunification. The worker explained that the goal was now adoption, not reunification. When Peter persisted, the worker had him removed from the room. A supervisor attempted to speak with him, but he continued to "rant" and "yell" at the worker and her supervisor.
Karen's foster mother subsequently told the Division that Karen told her she had been scared during the visit. According to the foster mother, Karen sometimes said that she did not want to go to the visits. The foster mother told the worker she encouraged Karen to visit with Angela.
On April 28 and May 14, Linda R. Jeffrey, Ph.D., conducted a psychological evaluation of Angela. Jeffrey's report described Angela as "irritable, argumentative and lack[ing] insight." At trial Jeffrey testified that Angela told her she was receiving parenting education and counseling services. Angela related that she had gotten into physical and verbal altercations with Gary. She described herself as depressed and subject to mood swings, but attributed this to the Division's removal of her children. On a self-disclosure checklist, she indicated she had trouble "with not getting along with other people and not having enough money."
Jeffrey opined that Angela had "problems forming and maintaining stable co-parenting relationships." Although Angela had nothing positive to say about the biological fathers of her children, she had only positive things to say about Peter.
When Jeffrey asked Angela about the Division's intervention, Angela described it as "bullshit." Angela told Jeffrey that Joanne herself had caused the burns to her feet, then added, "How can you be in two f_ing places at the same time?"
Jeffrey testified that Angela had "a Narcissistic Personality Disorder with obsessive-compulsive personality traits and schizoid sadistic features." Angela's test results raised concerns about her emotional maturity, "ability to monitor a child's behavior and . . . be cognizant of the child's needs," capacity to form positive relationships, "poor judgment," and "lack of personal insight." Jeffrey concluded that Angela "was not prepared to provide safe, consistent, reliable, attuned and responsible care for the children" and that the children would likely be "at risk for harm in her care." Jeffrey noted that she had evaluated Angela in 2004, when her first two children had been removed, and stated that during the 2010 evaluation, she did not detect "substantive improvement [of] the kind . . . you would expect to see as a person moves from being 19 to 25."
Jeffrey also evaluated Carl. She concluded that he suffered from depression, anxiety, and narcissistic personality disorder. Jeffrey testified that Karen would be at risk of harm if she were placed in his care.
Jeffrey conducted a bonding session with Angela and the three children. Angela put Karen and Donald on her lap and encouraged them to say that they had missed her. Later in the session, she asked Karen, "Do you want to come home with Mommy?" Karen did not answer her, and she asked again. When Karen answered "yes," Angela said, "That's right." According to Jeffrey, that type of interaction was inappropriate and demonstrated Angela's focus on her needs rather than the children's needs.
Later, Angela asked Karen if she loved her, and Karen did not answer. Then she asked Joanne for a hug and, when Joanne did not give her one, she demanded a hug. Angela then focused on Karen, calling Karen her princess. She told Karen, "I'll get you home. You want Mommy to get you home?" Jeffrey testified that Angela was "drawing the child in" and "trying to make the child make statements that would advance what" Angela wanted to happen.
Angela fed all three children pudding from one small container, using the same spoon. According to Jeffrey, that had the potential to create sibling conflict by having the children compete for the pudding. Angela also had Karen and Joanne feed Donald, even though Karen had a runny nose.
Throughout the session, Angela spoke loudly and the children, in turn, raised their voices. According to Jeffrey, the room became "quite disordered." At one point, Angela insisted that Joanne blow her nose and when she did, Angela said, "Oh, gross." Angela "put out her arms to [Karen] and [Karen] refused to go to her." Towards the end of the session, Angela told Karen that she had "to go home to [her] other mommy" and that she would "be home soon." Jeffrey testified that Angela's comment was likely to confuse the child.
Based on her observations and prior evaluations of Angela, Jeffrey concluded that the girls had an "insecure attachment" to Angela. They did not rely on her for safety and security, and did not trust her to provide for their basic needs. She testified that such a bond can be harmful to children in the long run because it teaches them to "love somebody who doesn't make you and your safety a priority," creating susceptibilities to domestic violence, substance abuse, and emotional difficulties. Jeffrey further testified that severing the girls' ties with Angela would be unlikely to cause them serious and lasting harm.
According to Jeffrey, Donald recognized Angela "as a familiar figure but he did not orient himself around his relationship with her." Consequently, according to Jeffrey, Donald would not be harmed if Angela's ties to him were severed.
Jeffrey also conducted a bonding session with the girls and their foster parents. Jeffrey testified that the foster mother showed her a chart tracking the girls' medical needs, appointments, and behavioral development. Jeffrey observed that Karen and Joanne "maintained good eye contact" with their foster parents and showed affection towards them. The girls "used them as secure bases from which to explore and organize their behavior." Jeffrey concluded that the girls had a secure attachment with their foster parents. She testified that the girls would suffer serious and enduring harm if this bond were broken. She explained that children with special needs, such as Karen and Joanne, have an increased risk of harm when such a bond is broken.
In addition, Jeffrey conducted a bonding evaluation of Donald and his foster mother. Donald's foster mother supplied Jeffrey with medical information and records reflecting the services he was receiving, such as speech therapy, physical therapy, treatment related to a genetic disorder, and upcoming surgery to insert tubes in his ears. She reported to Jeffrey that when Donald came to live with her, he did not walk or talk. At thirty months old Donald was now functioning at the level of a child eighteen to twenty months old.
In June 2010, after Donald had tubes inserted in his ears, his hearing and speech improved dramatically.
Jeffrey described Donald's foster mother as "displaying a nurturant, authoritative style of parenting," "guiding" and "engaging" Donald, and providing "positive interaction," "reassurance," and "affection." At one point, Donald said, "Up, up," and spontaneously hugged his foster mother after she lifted him onto her lap. He "laid his head on her shoulder and she warmly embraced" him. They made eye contact and rubbed noses before Donald laughed and returned to the floor to play. While he played, Donald brought toys to his foster mother, which they would talk about and laugh about, then Donald would go off to find different toys. According to Jeffrey, these types of interactions demonstrated a secure attachment, where Donald was both "maintaining proximity and being able to explore" the environment. Jeffrey concluded that severing the bond with the foster mother "would be likely to cause [Donald] serious and enduring harm."
During a visit in early June 2010, the Division worker noted that Angela and Peter continued to give Karen more attention than they gave the other two children when greeting them. Angela brought food for each child and made sure the children ate. When Angela asked Joanne for a hug, Joanne said "no." Angela "started to yell to the kids, 'I love you,'" but they showed no response. Karen sat on Angela's lap for a short while, then went to sit on the Division worker's lap.
Division workers continued to note that Angela was more attentive to the children's needs when Peter was present. When he did not attend or left early, Angela had trouble controlling the children and failed to recognize safety issues. For example, during a June visit, after Peter had left, Donald got his foot stuck under a bike and was crying. Angela stared at Donald without helping him until the worker instructed her to assist him. Angela then pulled on Donald's leg, and the worker had to tell her to be careful to avoid hurting him more. When the Division worker returned the girls to their foster home, the foster father told the worker that the girls had started putting their fingers in their mouths for about two days after visits.
Following the visit, the nurse informed the Division worker that Angela had told her that she had skin cancer and that she needed to get her children back to qualify for health insurance and spend time with them before she died. At the next visit, Angela told the Division worker that her doctors were not sure whether she had cancer. She also told the worker on various occasions that she took antidepressants. The worker requested documentation concerning those conditions and medications, but Angela never provided it.
The trial judge heard testimony on thirteen trial days between July 2010 and March 2011. Jeffrey and the Division caseworker, Billie Jo Paugh, testified at trial. Angela testified for the defense. In addition, the Division's records and reports were admitted into evidence. See R. 5:12-4(d).
Gary did not attend or testify at the trial, although his counsel was always present and participated in the trial. On the eighth day of trial, the Division requested the judge to enter a default judgment against Gary because he had not appeared. The judge granted the default. The Division also requested a default judgment against Carl, who had missed several days of proceedings. The judge denied the latter motion, but when Carl did not appear at the next trial date, the judge entered a default judgment against him. However, he told defense counsel that he would set it aside if Carl appeared at trial.
We note that the defendant in a Title 30 termination case has no obligation to appear at the trial. Gary was represented by counsel, who participated on his behalf. The Division should not have requested and the judge should not have entered a default judgment under those circumstances. N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 504 (App. Div. 2009), rev'd on other grounds, 205 N.J. 17 (2011).
At trial, Division worker Paugh testified that she had seen the girls interact positively with their foster family. When Paugh returned them to the foster parents after visits, the children would tell her they were "home." Paugh related that the girls often "cuddled" on the sofa with their foster parents, or ran to the basement to play with their foster brothers, with whom they were "very close." Paugh also testified that Donald appeared to be well adjusted to his foster family. He interacted well with them and often wrestled on the floor with his foster sister or played cars with his foster brother.
According to Paugh, Angela greeted Donald at the start of family visits, but otherwise often did not attend to him. He played by himself or walked into the hallway to interact with the Division workers or nurse. The girls knew Donald was their brother, and sometimes played with him during visits.
Angela testified that she had lived with Peter in his apartment for the past two years, but also maintained a three-bedroom apartment she used six days a month. She stated that Social Services had paid half the monthly rent on that apartment until November 2010. She explained that because her mother's friend owned the building, she was allowed to keep the apartment after the funding ran out, but then said that Social Services had already paid several months rent in advance. She testified that she and Peter were in the process of getting a house.
Angela testified that, in addition to Peter, she had an extensive support network of her family, friends, Peter's family, and Peter's coworkers who would help her support and care for the children.
Angela alleged that Gary "had [a] series of problems" and that he had been "raped when he was little." She testified that she had seen him have sex with his mother in front of the children. She alleged that she had taken a photograph of this incident but no longer had it. According to Angela, she told Gary to leave her home after that incident. She added that, a few days later, "he had somebody come there, bust down my door and hold . . . a gun to my head, talking about if you ever pull that shit again, I'm going to kill you."
Angela testified that at one time she had had a restraining order against Gary because "he pulled me off the bus by my hair and took me down the street to his little Glassboro crib with his mom and decided to rape me." She maintained that she had "always" been afraid of him, but stayed in a relationship with him for five years because "my mom asked me to and my family's just all screwed up in that way."
Angela further testified that she did not go to some of the children's doctors' appointments because she knew that Gary would be there. Others she missed because the Division waited until the day before or the day of a doctor's appointment to notify her. Some appointments conflicted with meetings that she had to attend through Robin's Nest.
According to Angela, she had reached out for help for her children in the fall of 2007, before the Division's involvement. She registered Karen and Joanne in an early intervention program through St. John of God Church, took parenting classes through ARC, and took the children to doctors' appointments.
In regards to the day the children were removed by the Division, Angela explained that she put the girls in the bathtub while Donald was asleep. A social-service worker from St. John of God was present. While she was running the bathwater for the girls, Angela simultaneously heard Donald cry, the phone ring, and a knock at the door. The worker told her that she would watch the girls while Angela answered the door. Angela testified that she warned the worker that Joanne might be able to reach the knobs on the faucet because she had just started getting up and reaching to play with things.
When Angela returned to the bathroom after answering the door, the worker said that she had seen Joanne turn one of the faucet knobs. Angela asked her why she did not stop Joanne. According to Angela, she responded, "[Y]ou're the mom." Joanne did not cry immediately. After Angela finished washing her, she cried and Angela thought she was fighting sleep. Angela then noticed that her feet "were redder than usual" and wanted to take Joanne to the hospital, but the Division worker insisted upon taking her and told Angela she could not come along.
Angela also testified about incidents that allegedly showed her failure to attend to the children's needs and safety during family visits. For example, contesting "evidence that the children had somehow run away from [her] at the visits," she said, "I know where my kids are at all times."
Angela denied that she failed to respond appropriately to Karen when she was crying on the Sky Tube at the restaurant's play area. According to Angela, she had waited to help Karen because she wanted Karen to make her own decision on how to proceed. After she saw that Karen was unable to decide what to do next, she helped Karen without being told to do so.
Angela testified that when Karen told her during visits that she wanted to go home, she believed Karen meant home with her. On at least one occasion, Joanne told her that she wanted to go home with her. Although Karen did not talk about her foster family during visits, Joanne did. However, Angela testified that Joanne knew she was "mom."
Angela insisted that she knew how to deal with Karen's seizures. She noted that she also had seizures as a child and "grew out of it." Further, she testified that she would make sure the children saw their various doctors regularly. She denied that she had not taken them to doctors' appointments in the past.
In response to the allegation that she refused to take medication to treat her mental issues, Angela maintained that she had only refused to take Ritalin in light of its negative effects on her sister when they were children. At the time of trial, Angela was taking Abilify to treat ADHD, benzatropine "for [her] heart because [of] a side effect to Abilify," and Seroquel to help her sleep and to help her "mind not to race forward a million times." She was also meeting with a counselor every week or every other week and a psychiatrist once every three weeks or once a month. She told the judge that the counseling and medications were helping her.
In terms of her health concerns regarding cancer, Angela explained that she had had cysts removed. The doctors initially thought she might have cancer, but later determined she did not.
Angela testified that she fainted randomly and would be unconscious for about ten minutes. She told the judge she wore an emergency call button around her neck because of the fainting spells, which her doctors believed were a type of seizure. Angela related that she had not experienced an episode in about a year.
The trial judge placed an oral decision on the record on April 25, 2011. He found that the Division had proven its case as to each defendant by clear and convincing evidence. He entered an order terminating Angela's, Gary's, and Carl's respective parental rights in the three children. Although he recognized Angela's love for the children and desire to parent them, he found that the care of her young, special-needs children was "beyond her" and "beyond her understanding to understand that it was beyond her." With respect to Gary, the judge found that he was unavailable at critical times in the lives of his children when he was "desperately needed," due to his intermittent incarcerations for failure to comply with Drug Court and absence from the state in an effort to avoid arrest on a bench warrant.
Angela and Gary filed separate notices of appeal, which we subsequently consolidated.
II.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation mark omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropri- ate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293.
In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. C.M., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by a clear and convincing evidence standard. Ibid.; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
These four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . 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. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. An "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
Under the last prong of the best interests standard, the question to be addressed 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. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering [the child's] health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The mere existence of a bond 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 (App. Div. 2005); see K.L.F., supra, 129 N.J. at 44-45.
In meeting the fourth 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 natural and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child "has bonded with foster parents" in a safe, nurturing home, while the parent has failed to correct situations that continue to endanger the child. E.P., supra, 196 N.J. at 108. Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
III.
We turn first to Angela's arguments on appeal. She contends that the Division failed to prove each of the four prongs outlined above by clear and convincing evidence.
A.
With respect to the first prong, the judge pointed to the incident when Joanne's feet were burned as exemplary of her inability to parent safely, as well as her inability to understand, or at least acknowledge, her parenting problems. Angela insisted that the child's feet were always red and that there was nothing to be concerned about. Even when the nurse said that Joanne's feet felt feverish, Angela disregarded the problem, saying that she had just given Joanne a bath. At trial, she sought to shift the blame to the ARC social-service worker. The judge rejected that testimony. The judge concluded that Angela did not intentionally burn Joanne's feet, but that the incident was an example of how Angela's limitations placed the children at risk and prevented her from providing them with a safe home.
Angela argues that there was no proof of direct harm to the other children. Parental fitness can appropriately be determined based upon prior treatment of not only "the child in question[,] but also . . . quality of care given to other children in [the parent's] custody." N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 174 N.J. 39 (2002). In addition, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383 (citing A.W., supra, 103 N.J. at 616 n.14).
We are satisfied that the judge correctly determined that the first prong had been satisfied by clear and convincing evidence as to Angela.
B.
With respect to the second prong, the judge noted Angela's strong desire to parent her children, but determined that she was still not able to do so adequately, despite the services provided by the Division.
ARC worked with Angela, in both a classroom and in-home setting, to teach her parenting skills. Nevertheless, it had a difficult time getting Angela to focus. Angela routinely resisted advice and direction from the several social-service agencies that worked with her, saying that she already knew how to raise her children and that she did not need anyone to tell her what to do.
Angela was also unable to appreciate the relationship between her physical and mental health issues, such as ADHD and a seizure disorder, and her inability to parent appropriately.
In her Social Security disability filings, Angela described herself as someone who could not conduct most day-to-day tasks, could not shop alone, had difficulty sitting still and concentrating, and had poor short-term memory. The judge noted that she was unable to relate these problems to her ability to care for three young children, each of whom had special medical needs that required ongoing care and attention.
The judge accorded Angela additional time to show that she could safely care for her children, recognizing that she had numerous health issues of her own to address. But, even at trial, Angela downplayed the extent of her physical and mental issues, and continued to claim that those issues were separate from her ability to parent.
Angela believed that her parenting problems were no different from anyone else's, arguing that the social-service agencies had exaggerated concerns about the children's safety. The judge concluded that "this lack of open-mindedness on the part of service providers is just nowhere in evidence in the very, very detailed reports."
The judge pointed to the fact that Angela's parenting skills did not significantly improve over time. For example, she left the children unattended in the tub, let them go near a hot radiator, did not watch them carefully with food, failed to fasten them in highchairs, and allowed Donald and Joanne to put small objects into their mouths.
While it is true that there were positive observations concerning Angela's interactions with the children, the reports in the record concerning Angela's supervised visits support the conclusion that Angela had failed to progress to a point where she could safely parent her children. Indeed, six weeks before the start of the trial, a worker had to direct Angela to take action when Donald's leg was stuck under a bicycle.
We reject Angela's argument that the workers who observed parenting visits should have been called as witnesses. Rule 5:12-4(d) provides that the Division "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) [hearsay exception for records of regularly conducted activity] and 801(d) [defining 'business'], reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." Other than Angela's own testimony, which the judge did not find persuasive, there was no rebuttal.
We are satisfied that the record supports the judge's conclusion that the Division proved the second prong by clear and convincing evidence.
C.
Angela next argues that the Division failed to prove the third prong of the best interests test. We disagree.
The Division oversaw family visits and held family meetings in an attempt to reunify the family. When ARC, Robin's Nest, and RENU oversaw family visits and provided Angela services, the Division received progress reports from them. It also provided Angela psychiatric and parental-fitness evaluations. Not only did the various doctors who examined Angela opine that she had issues with depression, anxiety, hyperactivity and attention deficit, Angela herself disclosed these problems to the various doctors. The doctors recommended medication, but she either refused to comply or failed to allow the Division to verify that she was taking medication to treat her illnesses.
"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 D.M.H., supra, 161 N.J. at 390), certif. denied, 171 N.J. 44 (2002). Where a parent suffers from mental disabilities, "[t]he Division's efforts in providing classes and parenting programs must by their very nature take into consideration the abilities and mental conditions of the parents." Id. at 442. We have held that "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for her children is not determinative of the sufficiency of [the Division's] efforts at family reunification." D.M.H., supra, 161 N.J. at 393.
The record reflects that the Division made significant and diligent efforts to reunite the family. That those efforts were not successful is tragic, but not evidence of a failure to make the effort in good faith. Consequently, we are satisfied that the Division proved the third prong by clear and convincing evidence.
D.
Finally, we turn to Angela's argument that the Division failed to prove the fourth prong by clear and convincing evidence.
The judge accepted Jeffrey's opinion that Donald had no bond with Angela, that Joanne had a weak bond with Angela, and that Karen had a stronger bond than Joanne, but that neither of these bonds was based on a feeling that Angela would meet the child's parenting needs. Conversely, Karen, Joanne, and Donald had healthy and strong bonds with their foster parents. Jeffrey's conclusion that termination of Angela's parental rights with respect to each child would not cause more harm than good was supported by the evidence in the record. We find nothing in the record suggesting otherwise.
Consequently, the judge's conclusion that the Division had proven the fourth prong by the required standard of proof was fully supported by the record.
IV.
Gary argues that the Division failed to prove the first, second, and fourth prongs of the best interests test.
As we have already noted, the trial judge erred in entering default against Gary, who was represented by counsel at trial even though he did not attend personally. Because the judge's opinion premised termination of Gary's rights on the merits of the case rather than on the default, we need not remand or reverse on that basis.
A.
Gary appeared to have a bond with the children and the ability to parent them, but the judge ruled against him because he repeated his pattern of absence from their lives due to his failure to comply with the requirements of Drug Court and probation. The judge observed that Gary had "walked away" from the children, been unavailable for visits during repeated incarcerations, and failed to "keep himself clean and on the right side of the law so that he could parent his children."
Gary points to the fact that the children were removed because Angela burned Joanne's feet, not because he had done anything to harm the children. Indeed, he was not in the home at the time. That fact, however, was part of the problem. As the judge noted at the start of his opinion, the Division was already involved with the family when Angela was about to give birth to Donald, and Gary had just been arrested and incarcerated. Angela's primary focus at the time was on helping Gary get out of jail because she needed his help to care for the children, in addition to which she relied on him for emotional support. ARC expressed its concern to the Division that Angela could not care for her children without help. Gary's absence at that critical time put the children at risk.
Gary correctly argues that incarceration alone is not a sufficient basis to find harm to a child, relying on New Jersey Division of Youth & Family Services v. S.A., 382 N.J. Super. 525, 533-34, 540 (App. Div. 2006), in which we reversed an order terminating a mother's parental rights based largely on the mother's having been incarcerated. He also cites In re Adoption of Children by L.A.S., 134 N.J. 127, 143-44 (1993), in which the Supreme Court outlined the appropriate inquiry regarding an incarcerated parent as follows:
[T]he trial court should determine whether the circumstances surrounding [the imprisoned parent's] incarceration justify the termination of parental rights based either on abandonment or parental unfitness or both. It should consider evidence of [the imprisoned parent's] performance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration. The court should also consider whether [the parent] will be able to communicate and visit with his children; what effect such communications and visitation will have on the children in terms of fulfilling the parental responsibility to provide nurture and emotional support, to offer guidance, advice, and instruction, and to maintain an emotional relationship with his children. Further, the court must consider the risk posed to his children by [the parent's] criminal disposition; what rehabilitation, if any, has been accomplished since [the parent's] incarceration; and the bearing of those factors on the parent-child relationship. The court should, with the aid of expert opinion, determine the need of the children for permanency and stability and whether continuation of the parent-child relationship with [the parent] will undermine that need. Further, the court should determine the effect that the continuation of the parent-child relationship will have on the psychological and emotional well-being of the children.
According to Gary, other facts relating to his interaction with the children weigh in favor of maintaining his parental rights. He attended parenting classes and regularly visited the children. All of the visits were positive and Gary met the children's needs while showing appropriate affection to them. Indeed, Robin's Nest believed he had a strong bond with the children. He participated in a family intervention program on his own without being told to do so. He attended doctors' appointments for the children and was addressing his drug problem.
While true, those facts do not outweigh Gary's substantial unavailability to the children at the beginning of the Division's involvement, at different times during the process, and at the end of the process. In addition to his absence when the Division removed the children from Angela, Gary was incarcerated from time to time during the two years in which the permanency plan sought reunification, and then absconded to avoid another arrest. Paugh testified that the children did not ask her about Gary after he stopped visiting them, and that although Joanne still talked about him sometimes, she did so "rarely."
Despite Gary's contention that he was trying to resolve his drug problem, the record does not reflect a wholehearted effort to stop using drugs and abide by the terms of his probation. The Drug Court repeatedly sanctioned him with short periods of incarceration for violations instead of sending him to jail, and the trial judge provided additional time to show that he could parent the children. In the end, Gary absconded to avoid yet another arrest.
Consequently, we are satisfied that the judge correctly determined that the Division had satisfied its burden to prove the first and second prongs by clear and convincing evidence.
B.
Finally, Gary argues that the Division failed to prove that termination of Gary's rights would not do more harm than good to the children.
Although Gary argues that the Division failed to offer expert testimony on the issue, he nevertheless admits that he did not appear for an expert evaluation with the children. Gary's failure to appear for the scheduled bonding evaluation with Jeffrey and his simultaneous removal of himself from further participation in the case by absconding drastically undercuts his argument.
Although an expert bonding evaluation involving Gary would have been preferable, the record reflects Paugh's testimony that the children did not ask her about him and Joanne only mentioned him rarely, as well as Jeffrey's testimony that the children had strong and healthy bonds with their foster parents. Gary cannot disappear before a scheduled bonding evaluation and then criticize the Division for failing to produce one.
Under the circumstances of this case, we are satisfied that the Division met its burden of proof on the fourth prong by clear and convincing evidence.
V.
In summary, having reviewed the record before us in light of the applicable law and the arguments of the parties, we hold that the trial judge correctly determined that the Division sustained its burden of proof as to each prong of the best interests test by clear and convincing evidence as to both Angela and Gary. Consequently, we affirm the termination of their parental rights.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION