Opinion
DOCKET NO. A-1953-11T3 A-1954-11T3
03-11-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.C.V. AND E.D., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.B.P. and L.D.D., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant L.C.V. (Robert W. Ratish, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant E.D. (William J. Sweeney, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.B.P. and L.D.D. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-186-11.
Joseph E. Krakora, Public Defender, attorney for appellant L.C.V. (Robert W. Ratish, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant E.D. (William J. Sweeney, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.B.P. and L.D.D. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants L.C.V. and E.D. appeal from a November 4, 2011 order terminating their parental rights to their daughter L.D.D., who was born in January 2010. L.C.V. also appeals from the termination of her parental rights to her son J.B.P, who was born in June 2007. Having reviewed the record, we affirm substantially for the reasons stated by Judge John Fratto in his oral opinion issued on November 4, 2011.
I
There is no dispute that L.C.V. suffers from longstanding, severe and recurrent mental illness, which has been exacerbated by her repeated failure to take her psychiatric medications. When she does not take her medications, she sometimes has psychotic episodes. She also withdraws emotionally from her children, even during supervised visits with them. E.D., who has been diagnosed with schizoaffective disorder, has a long-term substance abuse problem. He also disappeared for a year, during which he completely failed to visit L.D.D.
At a hearing in September 2011, E.D. admitted that he had been using drugs. On November 2, 2011, the second day of the guardianship trial, E.D. refused to take a drug test, and the judge inferred that the test would have been positive.
As a result of defendants' inability or unwillingness to successfully address their own life challenges, J.B.P. has been in and out of foster care since August 2007, and L.D.D. has been in foster care her entire life. J.B.P has lived with the same foster mother since June 30, 2009, and L.D.D. has lived with her since January 2010. Both children are now thriving in the foster mother's care, and she wishes to adopt them. Neither defendant presented any expert witnesses to rebut the Division's evidence addressing the children's best interests.
In his oral opinion, Judge Fratto concluded that the Division had satisfied the four prongs of the best interests test by clear and convincing evidence. We briefly summarize his findings, which are supported by sufficient credible evidence. R. 2:11-3(e)(1)(A).
Judge Fratto found that, through no fault of the Division, relatives who might otherwise have been qualified to care for the children, did not come forward until shortly before the trial. He found that, while it would have been desirable to place the children with family members instead of in non-relative foster care, "the passage of time has rendered that almost impossible."
The judge credited the testimony of the Division's expert psychologist, Dr. James Loving, that L.C.V. had bipolar disorder, with both manic and depressive episodes. She functioned poorly when she did not take her medication, and she often forgot to take it. She had been hospitalized in "various" psychiatric facilities, most recently in January 2011. The judge found that L.C.V. could function as a parent "adequately when she is mentally stable," but she was "a high risk to the children in her care" because she so often relapsed into mental instability. Rather than improving, the recurrence of her "severe depression" was increasing. Further, the judge found that L.C.V. could not safely parent the children with the help of E.D., because of his ongoing drug problems.
The judge noted that in March 2010, E.D. left the state and did not visit L.D.D. for a year. The judge further found that E.D. was offered substance abuse counseling but did not complete it. The judge credited Dr. Loving's testimony that E.D. "did not think it was wrong" to use illegal drugs and therefore was unlikely to refrain from substance abuse.
The judge found that L.D.D. had no parent-child bond with either defendant and would suffer no harm if their parental rights to her were terminated. On the other hand, she had a strong bond with her foster mother and would suffer "a high risk of harm" if that relationship were "severed." Neither defendant would be able to mitigate that harm if the child were placed in their care.
With respect to J.B.P., the judge found he had "a strong, but insecure attachment with both the mother and the foster mother." Due to the child's "emotional issues" it would be very damaging to him if he were returned to his mother, only to be removed again. The judge found that J.B.P. had an overwhelming need for "a sense of permanency":
And most importantly, according to . . . Dr. Loving, which I accept and agree, . . . it is critical that he [J.B.P.] not have to change [placements] again. To sever his relationships with his mother, there would be some risk of harm, but a good prognosis for overcoming that if he stays in the current home and experiences permanency.
That, of course, impacts on the contention that [J.B.P.] should be removed from his . . . current home, along with [L.D.D.], and placed in the custody of [L.D.D.'s] relatives, who are not blood relatives to [J.B.P.]. . . . I extrapolate from Dr. Loving's testimony that to do so
would cause serious and enduring harm to [J.B.P.] for the reasons previously stated.
Considering the four prongs of the best interests test, N.J.S.A. 30:4C-15.1a, Judge Fratto found that the parents had endangered the children's "safety, health and development" and "to place them back with . . . either or both parent[s] would continue to endanger their safety, their health, their development." He also found that defendants were "unwilling or unable to eliminate the harm facing the children," because E.D. continued to use illegal drugs and L.C.V. repeatedly failed to take her psychiatric medication. He found that separating the children from their foster mother would cause them serious and enduring emotional harm.
The judge found that the Division had made reasonable efforts to locate potential relative caretakers, and had likewise made reasonable efforts to provide defendants with services. The judge pointedly noted that the Division was not obligated to "hire detectives" to track down relatives, whose location defendants did not reveal because they did not want them to care for their children.
The judge concluded that there were "no alternatives [to termination] which would not cause more harm to the children than any benefits," and termination of defendants' parental rights would not do more harm than good. He found "to the contrary" that terminating the children's attachment to the foster mother would cause them substantial harm. As a result, he concluded that termination of defendants' parental rights was in the children's best interests.
II
In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(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-15.1a]
In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
On this appeal, we must defer to Judge Fratto's factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). We will not disturb the judge's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983) (citation omitted). And we owe special deference to the judge's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
Gauged by those standards, we find no basis to disturb Judge Fratto's factual findings, his decision to credit the expert testimony of Dr. Loving, or his decision to terminate defendants' parental rights. On this appeal, defendants each raise a series of arguments that we find are insubstantial and not supported by the record. Except as addressed herein, their appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
E.D. contends that the Division did not prove that he caused his daughter any harm, and that his substance abuse issues "need not preclude him from becoming an adequate parent." We are not persuaded. E.D.'s ongoing drug use precluded him from safely parenting his daughter and prevented him from regaining custody, thereby leaving her in extended foster care placement. In fact, he was still using drugs during the guardianship trial. As significantly, E.D. abandoned his daughter, disappearing for a year without visiting her at all. In his absence, the child bonded with her foster mother, who has become her psychological parent.
We likewise find no merit in either party's argument that the Division failed to make sufficient efforts to locate relatives with whom the children could be placed. To the contrary, both parents insisted that they did not want the Division to place the children with relatives in Puerto Rico and refused to provide names or addresses of family members.
In the middle of the guardianship trial, E.D.'s mother, who lived in Puerto Rico, filed a complaint for guardianship of L.D.D. Judge Fratto allowed her to testify during the trial. She expressed an interest in obtaining custody of both children, but admitted she had never met either of them and had made no previous effort to visit them. Additionally, the mother spoke no English and suffered from what she described as "myopia."
In an oral opinion placed on the record immediately after her testimony on November 2, 2011, Judge Fratto denied her application. He noted that the parents had previously insisted that they did not want their children to be cared for by relatives in Puerto Rico and had never before suggested that E.D.'s mother could be an available placement for either child. He further considered the children's existing strong bond with their foster mother and the high risk of harm if that attachment were severed.
The judge also heard testimony from E.D.'s sister, who had filed an equally belated guardianship complaint, and from E.D.'s brother, who proposed to help her raise the children. Neither the brother nor the sister had ever raised children. They both lived in Puerto Rico and had never met L.D.D. or J.B.P. According to the brother, the application was motivated in part by a concern that there were no other "descendents" in the family, and they did not want the family line to die out. In an oral opinion on November 3, 2011, the judge denied the sister's application, citing its untimeliness, the children's strong attachment to their foster mother, and the severe harm that would result from breaking that bond.
We find no basis in this record to disturb Judge Fratto's decision with respect to E.D.'s mother and sister. We agree that the Division made reasonable efforts to locate relatives. As we stated in a previous opinion:
We do not suggest that the Division has an obligation to search the fifty states or even the twenty-one counties to identify a parent's siblings, cousins, uncles and aunts. Nor do we suggest that a parent can expect the Division to locate a relative with no information or, as noted above, wait until the eve of the guardianship trial to identify a relative who is willing to adopt.
[N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011).]
The record further supports Judge Fratto's finding that the children would be severely harmed if they were removed from their foster mother's custody and placed with strangers. The Division presented evidence that J.B.P. was already suffering from emotional problems caused by disruptions in his prior foster placements. He has an overwhelming need for a permanent home, and that need far outstrips the value of placing him with relatives he has never met. Likewise, this record provides no basis to remove L.D.D. from her psychological parent — her foster mother.
We are also not persuaded by L.C.V.'s efforts to downplay her psychiatric problems and their impact on her children. Nor can we agree that the Division offered insufficient services. L.C.V. was provided with medication monitoring, but failed to attend. We understand the difficulty she has had in staying on her medications, but she, not the Division, is ultimately responsible for taking care of herself. "Mental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat [her] mental illness," and the parent's conduct is a threat to the child. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012).
In this case, L.C.V.'s failure to stay on her medications caused her to be unable to maintain custody of her children, to emotionally withdraw from J.B.P. during visits, and to severely neglect both children when she was allowed to have overnight visits with them. Young children need parents who are consistently available to care for them. They do not have a "pause" button that can be pressed when a mentally ill parent stops taking her medications and suffers psychotic episodes, severe depression and emotional withdrawal. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Id. at 453.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION