Opinion
DOCKET NO. A-5527-11T1
05-10-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. L.J.N., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF T.A.N. and J.A.N., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tamara Zurkovsky, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Happas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-146-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tamara Zurkovsky, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant L.J.N. appeals from the May 22, 2012 judgment of guardianship of the Family Part terminating her parental rights to her two daughters, T.A.N., born May 13, 1997, and J.A.N., born December 27, 2003. She argues the Division of Youth and Family Services (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of L.J.N.'s parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm substantially for the reasons articulated in Judge Craig Harris' comprehensive oral decisions.
I.
During a seven-day trial before Judge Harris, the Division presented the testimony of its caseworker, Mary Clark; Eric Kirschner, Ph.D. and James Battaglia, Ph.D., psychologists; and Dr. Alexander Iofin, a psychiatrist. They all evaluated L.J.N., and Dr. Kirschner also completed a bonding evaluation of the girls both with L.J.N. and with their foster parents. L.J.N. presented the testimony of Andrew Brown, III, Ph.D., a psychologist, and Dr. Arnaldo Apolito, a psychiatrist, who evaluated her and performed a bonding evaluation of the younger child with her foster family. The judge also interviewed the girls in camera.
We briefly recite the procedural and factual testimony and evidence that was adduced at trial and articulated at length in Judge Harris' oral decision of May 22 and supplemental oral decision of June 7, 2012. The record reflects that L.J.N. suffers from cognitive deficits and mental health issues, and she has a history of alcohol abuse. She also has been involved in violent and inappropriate behavior.
The first substantiated complaint for abuse, stipulated to by L.J.N. in lieu of a fact-finding hearing in the resulting Title 9 complaint filed by the Division, occurred on December 25, 2009. While intoxicated to the point of being incoherent, she physically assaulted her daughters, then age twelve and five, when they returned from Christmas Dinner with their grandfather. L.J.N. admitted she struck one of her daughters with a belt numerous times. The older girl advised the Division investigator that L.J.N. also pulled out some of her hair, slapped her across the face, and punched and choked her in a drunken rage. She protected herself by hitting L.J.N. with a frying pan, and the girls ran into the bathroom to hide and phone the police.
As a result of the incident, L.J.N. was arrested and charged with two counts of endangering the welfare of a child and one count of simple assault. She had also violated probation and had two open arrest warrants. She was incarcerated for three months. In August 2010, L.J.N. pled guilty to fourth-degree child cruelty-neglect, N.J.S.A. 9:6-3, and she received three years probation.
Immediately after L.J.N.'s arrest, the Division authorized an emergency DODD removal of the children pursuant to N.J.S.A. 9:6-8.29 and -8.30, and placed them with their maternal grandmother. They were promptly removed and placed in a Division-approved resource home because the Division found a prior substantiation against the grandmother and she was undergoing methadone treatment. On June 24, 2011, the girls were placed with their godparents, Mr. and Mrs. D., who L.J.N. offered as a resource, pursuant to an approved interstate compact as they live in Pennsylvania. The placement continued through the date of trial and the godparents expressed a willingness to adopt the girls.
L.J.N. was noncompliant with services and by letter of March 2011, the Division was notified that she had threatened the caseworker who managed her supervised visits. As a result, future supervised visits were suspended and the court approved modification of the Division's permanency plan from reunification to termination of parental rights. On May 13, 2011, the Division filed an order to show cause and complaint for guardianship.
On June 6, 2011, L.J.N. began cognitive behavioral therapy. Her treating psychologist described her attendance as consistent but she was "very resistant and unresponsive during sessions." She was incarcerated on June 7 for shoplifting. L.J.N. continued to be verbally abusive and threatening to Division staff on several occasions. In October, Mrs. D. complained to the caseworker that L.J.N. was causing problems during in-home visits because she brought gifts and paid attention to the younger child, but ignored the older one. Around this time, the children and Mrs. D. reported to the caseworker that L.J.N. had threatened to kidnap her younger daughter from school. L.J.N. tested positive for alcohol on October 26, 2011, but did not complete follow-up urine screens. She was incarcerated a second time during the course of litigation, from November 14 to 29, 2011, either for "old warrants" or shoplifting.
Dr. Kirschner evaluated L.J.N. in May 2010 and October 25, 2011. He opined that L.J.N.'s reliability as a historian is questionable, she minimizes her alcohol use, minimizes her behaviors and externalizes her responsibility onto others, and lacks insight. Based on his clinical assessment and objective testing, he further opined that L.J.N. tends to be rigid in her approach to parenting, which generally would entail an emphasis on the use of threats and physical punishment. He expressed particular concerns about L.J.N.'s continued anger management issues, commenting that it appeared she had not benefited from the anger management classes, and expressed additional concerns that the issues that played a role in the removal of the children were ongoing with various service agencies and were not an isolated problem with a single agency. Dr. Kirschner concluded that L.J.N.'s overall psychological functioning impairs her ability to parent, her prognosis to engage in corrective intervention is poor, and the services provided by the Division have not improved her ability to function as a parent. Dr. Kirschner opined that the girls would be at heightened risk of harm in L.J.N.'s care.
Dr. Iofin evaluated L.J.N. on March 2 and November 26, 2011. He diagnosed her as a perpetrator of abuse and neglect, with Impulse Control Disorder NOS, Intermittent Explosive Disorder, Adult Antisocial Behavior, and Cognitive Disorder NOS. He noted that L.J.N. had made some progress as a result of her cognitive behavioral therapy. Dr. Iofin noted, however, that L.J.N.'s "psychological pathology" with chronic problems with impulse control cause L.J.N. to be prone to verbal and physical altercations and, when coupled with her shallow judgment, an impaired ability to properly assess situations, and history of intoxication, make it impossible for her to be considered as a "viable minimally adequate parent for her children now or in the foreseeable future." He testified that the multiple services provided to L.J.N. did not benefit her due to her personality disorder with self-defeating personality traits and opined that continued treatment would potentially produce only "insignificant improvement" because of her pervasive underlying problems.
The defense psychologist, Dr. Brown, opined that L.J.N.'s problems arose from a mild traumatic brain injury resulting from a 2005 vehicular accident based on L.J.N.'s self-report without any documentation. He acknowledged that L.J.N. has a cognitive disorder, poor auditory and attention concentration, slowness conceptualizing and resolving problems, deficient understanding of social mores, and has continued to demonstrate a lack of self-awareness by not taking responsibility for assaulting her children. Dr. Brown also opined that L.J.N.'s actions demonstrate a lack of empathy towards her daughters, he acknowledged that her alcohol use has caused harm, and he testified that alcohol use would exacerbate L.J.N.'s impulse control problem. Although Dr. Brown acknowledged that L.J.N. has a poor prognosis of benefiting from therapy, therapeutic visitation, and anger management, he posited that the Division did not provide her with proper services. He opined that, based on his testing, L.J.N. would benefit from further treatment, such as cognitive behavior therapy, but he could not quantify how long it would take her to improve. He conceded that she was not currently able to provide a safe and stable home for her daughters.
Dr. Kirschner testified about the bonding evaluations. He related that the older daughter left the session early and refused to talk to her mother. She commented that L.J.N. treated her differently than her younger sister and pressured her to make certain statements in court. She said she would refuse to live with L.J.N. Dr. Kirschner opined that there was not a secure bond or attachment relationship between her and L.J.N. despite having lived with her mother for twelve years.
Dr. Kirschner noted L.J.N. attempted to improperly influence her younger daughter's evaluation by instructing her to state that she wanted to come home. He explained the child's conflict in wanting to live with her mother, but also wanting to live with her older sister; however, she had a stronger desire to remain with her sister. Dr. Kirschner concluded that she had developed a conflicted parent-child bond with L.J.N., which was "psychologically complicated" and "less than ideal." He concluded the sibling bond was more important than the parental bond, stressed the importance of placing the girls together, and recommended placement with the D. family. He observed that both girls had a strong attachment with the D. family and opined that would serve to mitigate any psychological harm they might suffer if their relationship with L.J.N. were severed. He opined that the girls' best opportunity to obtain permanency in their lives was termination of parental rights and adoption by the D. family.
It was undisputed that Dr. Apolito never met or spoke with the older girl. As a result of his meeting with the younger girl, he testified that she was "strongly bonded" with L.J.N.; however, he also acknowledged that when he asked her if she wanted to live with her mother, the girls responded "maybe," not "yes," which he admitted indicated conflict in the relationship. He further admitted that L.J.N. was not currently capable of providing a safe and stable home, that she was in conflict with her older daughter, and that this presented a significant problem. Moreover, he acknowledged that the children needed permanency and could not state with any certainty when L.J.N. would be able to parent her daughters. He opined that if the younger girl did not return to L.J.N., the D. family would be the best choice for her placement.
During the in camera interview, the older girl advised the judge that she did not want to return to her mother and that "being adopted would be a good thing[.]" She agreed it was important for her younger sister to stay with her. The younger girl said she would like to "[g]o with the [D. family] forever."
Judge Harris issued an order and extensive oral opinions terminating L.J.N.'s parental rights to her daughters. The judge found the Division had proved its case by clear and convincing evidence. This appeal ensued.
II.
On appeal, L.J.N. argues that the guardianship judgment should be reversed because the trial court failed to apply the "best interests" criteria. More particularly, she argues: (1) under the first and second statutory prongs, instead of relying on the wishes of the children, the court should have focused on the harm, if any, that would have resulted if they were reunified with their mother; (2) the Division did not make "reasonable efforts" to provide reunification services to L.J.N. because it referred her for inappropriate services; and (3) termination of parental rights would do more harm than good. We are not persuaded by these arguments.
The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.
"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), vacated on other grounds, 163 N.J. 158 (2000). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (quotation marks omitted).
(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 [D]ivision 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).]
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279. Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that the children's best interests required termination of L.J.N.'s parental rights.
The totality of the evidence, including the expert testimony of Drs. Kirschner and Ioftin expressly credited by Judge Harris, the caseworker's testimony, and the children's comments to the court, overwhelming support the finding of prior and ongoing harm with the parental relationship to satisfy the first two statutory prongs. The Christmas Day incident that led to the children's removal was fraught with alcoholic rage, corporal punishment, and physical assault by L.J.N. Moreover, in addressing the second prong, Judge Harris explained that L.J.N.
failed to comply with services, has behaved in a combative and inappropriate manner while in the presence of numerous service providers. [She] has also acted with blatant favoritism to [the younger child], continuing to blame [the older child] for the removal, has used foul language in front of the children, has upset the children by sharing personal adult matters involving [the younger child's] paternity, [L.J.N.'s] pregnancy, and the termination of a pregnancy [] was discussed with the children. Further, [L.J.N.] has continued to use alcohol. [L.J.N.] has not obtained employment.She also threatened the caseworker, did not adequately address her anger issues, and continued to exhibit poor impulse control despite the receipt of services. Judge Harris also found significant that "both of [L.J.N.'s] experts concur that [she] is not currently able to parent." Moreover, none of the experts were able to give a timeframe for reunification, and L.J.N. has shown little to no progress towards that goal since the inception of the litigation. See N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) ("The question is whether the parent can become fit in time to meet the needs of the child."), certif. denied, 205 N.J. 519 (2011); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (reiterating that as public policy increasingly focuses on a child's need for permanency, the emphasis has "shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well being."), certif. denied, 180 N.J. 456 (2004).
L.J.N. next argues the record does not support the trial judge's finding that the Division made reasonable efforts to provide adequate services. In particular she contends the non-cognitive behavioral services that were offered were inappropriate for her needs. We disagree.
The third statutory prong requires the Division to make reasonable efforts to provide services to assist a parent to correct his or her circumstances. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates on an individual basis the efforts undertaken by the Division to reunite a family. D.M.H., supra, 161 N.J. at 390.
As noted by Judge Harris, L.J.N. received psychological and psychiatric evaluations, visitations, anger management and individual therapy, domestic violence counseling, and parenting skills. However, she chose to minimize her alcohol problem and was not forthcoming with the particulars or documentation about the purported motor vehicle accident that could have been used for diagnostic or treatment purposes. L.J.N. also chose to enroll in an eight-week parenting class rather than the twenty-four-week class to which she was referred, was consistently late for visitations, appeared for services intoxicated, and was discharged from services for noncompliance.
Finally, the fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the children. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.
The ultimate determination to be made "under [this] prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the children from foster parents requires expert testimony on the strength of each relationship. Ibid.
Here, the trial judge found that termination of parental rights would not do more harm than good and concluded that terminating L.J.N.'s parental rights was in both her daughters' best interests. The older child did not have a secure bond with her mother, who basically ignored her during visitation and blamed her for the removal, and the credible expert testimony was that "separation of the sisters would be devastating." Although the younger child had an attachment to her mother, she also expressed a desire to stay permanently with the D. family, her godparents, where she had been since June 2011. The reality is that L.J.N. would never be able to provide a safe and stable home for her daughters within a reasonable period of time, if at all, and that delaying a permanent placement would only add to the harm. The girls had bonded with the D. family and were thriving in their care. Moreover, the D. family expressed a desire to adopt both girls, which would enable them to remain together. Accordingly, the judge had ample basis to conclude that the attachment bond with the D. family would mitigate any psychological harm that the girls would suffer by termination of L.J.N.'s 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