Opinion
DOCKET NO. A-5332-11T4
05-01-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.J.F., Defendant-Appellant, and J.A.W., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF D.L.F., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle McBrian, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for the minor (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh, and Leone.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0090-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle McBrian, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for the minor (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant M.J.F. (Mary) appeals the Family Part's May 9, 2012 order terminating her parental rights to her then three-year-old daughter, D.L.F. (Danielle). We affirm.
Pseudonyms have been used for the sake of anonymity and ease of reference.
I.
We discern the following facts and procedural history from the record on appeal.
Danielle was born on January 17, 2009. Mary also has three sons: John, born in December 1991; Ian, born in August 1995; and Kevin, born in July 1996. At the time Danielle was born, the Division had been monitoring the family to ensure the sons' needs were being met. However, it was not providing services at that time.
Defendant J.A.W., whom Mary identified as Danielle's father, died in December 2008. He had been her partner for approximately seventeen years.
Mary received no prenatal care while pregnant with Danielle, who was born at twenty-three weeks. She had "no cry, no respirations, and was blue and limp" when born. Following her birth, Danielle's medical problems included duodenal stenosis, a grade 4 intraventricular hemorrhage, chronic lung disease, cholestasis, thrombocytopenia, anemia of prematurity, and a feeding intolerance. She required multiple surgeries to address those conditions. In addition, she continues to require regular follow-up appointments with medical specialists, takes medications daily, and has dietary restrictions. Danielle is developmentally delayed and attends speech therapy.
In April 2009, the Division of Youth and Family Services (Division) received a referral from University Hospital in Newark, where Danielle had been in the Pediatric Intensive Care Unit (Pediatric ICU) since her birth. The hospital contacted the Division because it was unable to locate Mary to obtain her consent to required cardiac surgery for Danielle. Mary had recently been evicted from her apartment, and reportedly had not visited Danielle for several weeks.
According to the referral, Mary had also refused to touch Danielle after she was born. Mary denied that assertion, contending that Danielle had not been brought to her by the hospital staff. She also testified that she did not want to go into the Pediatric ICU because she was afraid she might make her daughter sick. Mary was unable to recall when she first saw Danielle.
The Division located Mary a few days after receiving the referral from the hospital. She expressed a desire to care for Danielle. Mary told the Division worker that she wanted to see Danielle but had been physically unable to do so because of illness. The Division learned that John, Mary's oldest son, had been caring for the family due to Mary's medical problems. He had missed thirty-five days of school during his senior year as a result.
Mary suffers from diabetes, renal disease, anemia, and high blood pressure. She is required to have kidney dialysis three times a week, although she does not always maintain that schedule because she does not keep dialysis appointments when she is feeling sick. Both of Mary's legs have been amputated, the first amputation occurring in the summer of 2009 and the second in May 2011. Following the first amputation, Mary was fitted with a prosthesis. As of May 2012, she was scheduled to receive prostheses for both legs, but had not yet received them. Mary acknowledged that she sometimes "forget[s]" to take her insulin, and once reported going off her high blood pressure medicine for two days due to nausea.
The serious nature of Mary's medical condition has led to frequent hospitalizations, lasting on average about a week. During a hospitalization in August 2011, she signed herself out against medical advice because she was concerned that the Division would take custody of her two younger sons.
A Division case worker reached Mary by telephone and subsequently met with her at her new apartment on April 21, 2009. She reported that the family was struggling emotionally because of the death of Danielle's father. Mary told the worker that she understood the reasons for the Division's involvement and requested assistance. The Division arranged to supply Mary with a refrigerator and beds for her children in her new apartment. Mary agreed to submit to a psychological evaluation, and to ensure that John attended school regularly and took diabetes medication as prescribed. The Division also supplied a parenting aide five days a week, as well as nursing services three days a week, starting April 24. The Division subsequently advised Mary, who was relying on financial assistance from her mother and social security payments for two of her children, to apply for her own social security benefits. At a later date, the Division also began providing funds for groceries and a cell phone, and transportation assistance.
On May 13, the parenting aide reported that, after Mary told her she could not visit Danielle in the pediatric ICU because she lacked transportation and was very weak, she arranged for Mary and the three sons to visit Danielle. The aide observed that Mary had "frequent bouts of vomiting," and was "often tired" and "usually weak." The parenting aide suggested in her report that Mary and her children would benefit from counseling.
On May 18, the Division advised Mary that Danielle would be placed in a foster home upon her release from the hospital if Mary's medical condition rendered her incapable of caring for an infant. Mary requested a bus pass so she could visit Danielle in the hospital, and the Division case worker agreed to follow up on her request. Bus passes were subsequently provided.
On May 28, following multiple seizures, Mary was admitted to the hospital. Consequently, the Division sought custody of all four children in June. On June 18, the Family Part judge granted the Division care and custody of Danielle only, awarding it care and supervision of the boys. Danielle was released from the hospital on June 19 and placed in foster care.
In addition to providing nursing services at her foster home, the Division provided Danielle with physical, occupational, and speech therapy twice weekly.
In June, the Division entered into a new case plan with Mary. It required Mary and E.F. (Edith), her mother, to ensure that the boys attended summer school, and to provide safe housing and basic needs for the family. It also required Mary to attend all of her medical appointments. Counseling services were provided to Mary, Ian, Kevin, and Edith by Final Stop Family Services. John declined to participate in the family counseling.
Edith lives in South Carolina, but came to New Jersey to assist Mary during and after Mary's surgeries in 2009 and 2011.
In the fall, the Division arranged for two-hour weekly visits between Danielle and Mary. Jordan Brown, the licensed social worker who observed the initial visit, reported that it was "warm, positive, affirming and completely appropriate." She also observed that Mary's three sons were "loving and attentive and extremely well mannered." She recommended increased visitation because "Mom and baby are bonding together and 2 hours per week is not sufficient in any way."
Positive reports on the visits continued. The visits were eventually increased to full-day sessions three times per week. In a report submitted to the judge in June 2010, Brown reported that Mary had experienced stomach pain during a recent visit. Her condition worsened and Brown had had to call an ambulance for her.
Brown also reported that, although Mary wanted to care for her daughter, she was not sure Mary would be able to do so. Brown reported that Mary was "medically fragile" herself and was unable to provide adequate care for her "medically fragile daughter at [that] time." She concluded that Mary's "chronic medical condition and constant hospitalizations put[] her daughter [Danielle] at risk for chronic out of home placements."
One report from a nurse who observed visits indicated that Mary sometimes failed to clean Danielle correctly when changing her diaper. At trial, Mary asserted that she had been corrected once and adjusted her practice. Another report stated that the apartment smelled strongly of garbage during one visit, requiring the nurse to point out that the garbage smell posed a health hazard, especially for Danielle's sensitive respiratory system.
Mary struggled to maintain adequate housing for her family. She was evicted from an apartment shortly before the Division's involvement in April 2009. She and her sons then moved to a two-bedroom apartment, which a parenting aide later described as "not in . . . good condition." In November 2009, the aide reported that the home was "dirty," had "a bad odor," and lacked proper ventilation. The apartment also had bedbugs. The aide reported in December that Mary was "trying her best to make it possible to move" to a better apartment. In early 2010, Mary and the boys moved to an apartment that a Division case worker characterized as "more suitable, more spacious and in better condition."
In August 2011, a Division worker who visited the apartment when Mary was hospitalized observed that the apartment "was dirty," "[t]he beds were on the floor," and the bedroom closet door "was off its hinge." In November 2011, a nurse who monitored Mary's in-home visits with Danielle reported seeing roaches in the kitchen. According to a January 2012 nurse's report, there were roaches in the kitchen, "small bugs" were on a sheet placed on the kitchen floor to soak up water from a leaking sink, and mice were observed through a hole in the wall. Mary told the nurse in January that she had reported the leak in October but it had not yet been repaired, and that she had stopped paying rent.
Mary was evicted for nonpayment of rent in February 2012. She did not inform the Division that she was being evicted until the week before it occurred. After she moved into a new apartment in March, a nurse found it to be unsafe, resulting in the cancellation of two visits with Danielle.
Mary moved to another apartment in April. The Division worker who visited the apartment found bare mattresses on the floor, even though the Division had previously provided bed frames. The worker noted the home had a "very, very bad odor." Mary acknowledged that there was a "smell . . . coming from the sewers in the basement."
On three occasions, the Division temporarily removed Mary's younger sons, Ian and Kevin, during Mary's hospitalizations, although Mary's oldest son, who turned eighteen in December 2009, testified that he had spoken with Division case workers about looking after his brothers when Mary was absent. The two boys were first removed during Mary's hospitalization in February 2010 because the Division was unable to find other family or friends to care for them. They were removed again in June, and remained in the Division's custody for nine months. The third removal took place in August 2011, when the nursing service discovered that there was no food in the apartment because Mary was in the hospital again.
Division workers who visited with Ian and Kevin repeatedly between November 2009 and March 2012 found them to be healthy and safe, and determined that Mary was able to meet their basic needs. Consequently, at the time of trial, the Division had concluded that it was appropriate for the boys to remain with their mother. A case worker testified that Ian and Kevin, then in their middle teens, were "able to care for themselves" and "would [not] be in any danger with [Mary]."
The Division investigated members of Mary's family to determine whether a family placement was possible. Mary's mother, Edith, did not put herself forward as a possibility, and Mary testified that she was unwilling to move to South Carolina to live with her mother. Mary's sister had also been considered and ruled out in 2009. In addition, Danielle's paternal grandmother was considered, but was ruled out because she was unwilling to care for Danielle.
On June 3, 2010, the trial judge granted a six-month extension of the permanency plan for reunification because Mary's medical status continued to prevent her from being able to care for Danielle. On July 22, the judge rejected the Division's permanency plan of termination of parental rights followed by adoption because an adoptive home had not yet been found.
In August 2010, Danielle was placed with her current resource parents, who wish to adopt her. Danielle's foster mother is a pediatric nurse who is well-equipped to care for her special needs.
On December 7, the trial judge granted the Division's permanency plan calling for termination of parental rights followed by adoption, citing Mary's continuing medical problems. The Division filed an order to show cause and complaint for guardianship in January 2011.
In February, Briana Cox, Psy.D., completed a psychological evaluation of Mary on behalf of the Division. Mary told Cox that she believed she could care for Danielle. When asked if she had a support system in case she became incapacitated, Mary acknowledged that Edith would not help her, and that her remaining family members would not take her calls. She told Cox that she was frequently in the hospital and stayed on average about a week. Mary told Cox that John helped with the care of her two younger sons. Mary explained to Cox that, because she had been adopted herself, she did not want her daughter to be adopted.
Cox found Mary's affect to be depressed, and that she expressed feelings of hopelessness and excessive worrying. She administered the MCMI-III, which indicated that Mary "approached the test in an open and honest manner." She scored "very high" on the scale measuring narcissistic personality traits, which "could create some difficulties in the way she cares for her children." She also showed dependent characteristics. Cox concluded that the "major risk factor regarding [Mary's] ability to parent effectively is her health," along with her inability to secure a support system with the exception of her then nineteen-year-old son. She recommended in-home therapy to address dependent and narcissistic traits. Cox did not testify at trial.
Leslie J. Williams, Ph.D., who testified at trial for the Division, conducted a psychological evaluation of Mary and a bonding evaluation of Mary and Danielle in March 2011. He conducted a bonding evaluation of Danielle and the foster family in May. Williams concluded that Mary "presents as someone who feels depressed, helpless, and hopeless." During the bonding session, Williams noted that Mary, "who appeared fatigued," watched Danielle but "appeared to be unable to play or actively interact with her." When Danielle was asked who Mary was, she smiled at her but did not say anything. Danielle did not call Mary by any name throughout the session. Danielle showed no difficulty when separating from Mary.
In contrast, during the bonding evaluation with her foster parents, Danielle referred to them as "daddy" and "mommy," and was spontaneously affectionate with them. The foster family's three-year-old son also took part in the session, and Williams observed that he and Danielle "played and laughed in typical sibling fashion." Danielle was reluctant to leave the foster family when Williams asked if she wanted to take a walk, and became distressed when Williams asked the foster family to leave the office first while Danielle stayed behind. Williams concluded that Danielle "views them as her psychological parents to whom she looks for nurturance and safety."
Williams opined that Danielle "would suffer severe and enduring psychological harm if she were removed from the [foster family]." He also concluded that,
within a reasonable degree of psychological certainty, [Mary] is not capable of providing adequate parenting of [Danielle] and will not be for the foreseeable future, if ever. Through no fault of her own, [Mary's] medical issues preclude her from active, independent functioning as a parent. I do not believe that a parenting aide would be sufficient to assist [Mary]. Nor do I believe that [Danielle's] care should be entrusted to her teenage siblings. [Danielle] has found a stable, nurturing home with [the foster family]. Her need for permanency should not be put on hold while [Mary] struggles with her chronic medical problems. It would be in [Danielle's] best interests to remain with, and be adopted by, [the foster family].Williams noted the foster family had stated that Mary could continue to have contact with Danielle and be involved in her life.
Williams conducted an updated psychological evaluation of Mary in February 2012. When he asked Mary how she would care for Danielle, Mary responded that her sons would help her. Mary stated that her sons shop, cook, and clean for her. Williams noted his concern that Mary had signed herself out of the hospital against medical advice in August 2011 to prevent the Division from removing her younger sons in her absence. According to Williams, that conduct underscored Mary's "questionable judgment and provid[ed] another example of her emotional limitations." When Williams "suggested that her sons could not be expected to raise" Danielle, Mary told Williams she believed she was being discriminated against because of her disabilities.
Williams concluded that Danielle's "care should [not] be entrusted to her siblings" and that such a plan was not "a remotely reasonable plan for a three-year-old child, let alone one with medical issues." Williams testified at trial that removing Danielle from the foster family would cause harm that Mary would not be able to mitigate, finding that Mary
is very much consumed by her own issues and has demonstrated a number of times that she's not really attend[ing] to . . . [Danielle] and [Danielle's] needs, physical and emotional. And as I noted earlier is really not attend[ing] to her own needs. So that I think that she would not be able to deal with the very significant loss that [Danielle] would experience if she was removed from her foster parents.
According to Williams, issues of a psychological nature, in addition to Mary's physical limitations, would prevent Mary from being able to parent Danielle. Williams testified that Mary should have been offered individual therapy to help with her depression. Nevertheless, Williams opined that even if Mary were offered individual therapy and obtained her prostheses at that time, he believed that Danielle "would suffer enduring harm if she's removed from her foster parents."
Richard S. Klein, Ed.D., testified on Mary's behalf. In his December 2011 report, Klein noted that Mary admitted "experiencing occasional depression concerning her condition." Mary told him she had three goals: "1) for me to walk again, 2) have my little girl back and 3) for the whole family to get together." During a bonding evaluation with Mary and Danielle, Klein observed that Mary interacted with Danielle, talking with her, praising her, and singing her a song. Danielle was responsive to her mother. She sat on Mary's lap, clapped with her, complied with her instructions, and "went to [Mary] for security when anyone entered the room."
Although Klein concluded that Mary "is not capable of parenting her . . . daughter [Danielle] independently," he opined that this was "due to no fault of her own" and that, if Mary
were financially able to retain govern[esses], baby nurses, etc., the Division would not be involved in this case. Termination of parental rights is a punishment for the biological family and the child which would not occur if [Mary] was financially capable of providing care.
At trial Klein testified that the termination of parental rights could cause Danielle to experience "emotional problems" later in life. Klein recommended kinship legal guardianship rather than termination. He emphasized, however, that he did not recommend reunification at that time.
Mary testified that she would be able to dress and feed Danielle, and that her sons could help her with other aspects of Danielle's care, including taking her to school. She also testified that her upstairs neighbor could help her. All three of her sons testified at trial that they wanted Danielle to come home and would assist in her care. John, who had recently become employed, asserted that his employer would allow him to leave work as needed to care for his sister. However, John also acknowledged that the Division had taken him to the food bank and to do laundry in the past. He also testified that, although he was aware Danielle had been placed in foster care because she had special medical needs, he did not know what those needs
Following three days of testimony, the trial judge delivered an oral decision and issued an order terminating Mary's parental rights over Danielle. The judge's May 9, 2012 oral decision was supplemented on May 17. While noting that Mary had created a "loving environment" in her home, the judge found that she and her own expert had acknowledged that she was unable to care for her daughter independently. The judge found that the Division had met all four prongs of the best interests test contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. This appeal followed.
On September 4, 2012, we stayed the adoption proceedings pending appeal.
II.
Mary raises the following issues on appeal:
POINT I
THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A JUDGMENT TERMINATING [MARY'S] PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY N.J.S.A. 30:4C-15 AND 30:4C-15.1.
(A) THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT [DANIELLE'S] HEALTH AND DEVELOPMENT HAD BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG.
(B) THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT
[MARY] WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILD OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR [DANIELLE] AND THE DELAY OF PERMANENT PLACEMENT WILL
ADD TO THE HARM UNDER THE SECOND PRONG.
(C) THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT IT HAS MADE DILIGENT EFFORTS TO PROVIDE SERVICES TO HELP [MARY] CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME UNDER THE THIRD PRONG.
(i) VISITATION(D) THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF [MARY'S] PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
(ii) MENTAL HEALTH SERVICES
(iii) AMBULATION SERVICES
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 appropriate 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 (citation and internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still 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, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
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. CM., 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 devel-opment 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), 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. The 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 care. 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 now turn to Mary's arguments on appeal. She contends that the Division failed to prove each of the four prongs by clear and convincing evidence.
A.
Mary first argues that the judge erred in determining that Danielle's health and development has been or would continue to be endangered by the parental relationship, because she had never had custody of Danielle and thus had never actually harmed her.
Under N.J.S.A. 30:4C-15.1(a)(1), "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. "A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. "[T]he mental health of the child and its best interest psychologically must always be considered," and "[t]he absence of physical abuse or neglect is not conclusive." A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977)) (internal quotation marks omitted). "Courts 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.
On the other hand, "[i]t is well-established that the period of time a child has spent in foster care is not determinative of whether parental rights to that child should be terminated, as '[t]he protection of parental rights continues when a child is placed in foster care.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 169-70 (2010) (quoting K.H.O., supra, 161 N.J. at 347) (finding biological father's eight-month delay in offering himself as child's caregiver did not cause harm). "[T]he element of simple expediency cannot become the goal sought." Id. at 171.
While the second prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(2), "more directly focuses on conduct that equates with parental unfitness," the first two prongs "are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379.
The judge found that "there can be no doubt that the child was endangered by the failure of [Mary] to be immediately available for the care of her child." Mary contends that the trial judge erred in relying on her delayed initial contact with Danielle, claiming that the sole basis for this reliance was the testimony of a Division worker who did not become involved in the case until January 2011. The record, however, reflects that the judge did not rely solely on the worker's testimony in making his finding. The judge noted that Mary could not recall specifically when she first saw her daughter. He did not credit Mary's testimony that she chose not to visit Danielle in the ICU regularly because she did not want Danielle to be exposed to her. The trial judge's credibility determinations are entitled to our deference. Cesare, supra, 154 N.J. at 413. In addition, we note that the Division's involvement was initiated because the hospital could not locate Mary to obtain her consent for needed surgery.
The judge also pointed to the facts that Mary had not been compliant with her own medical treatment or case plans for supervising her older children, and that the home environment was unstable, with "mattresses . . . on the floor without sheets, dirty clothes strewn about, the smell of sewage in the apartment," "despite the Division's efforts to provide furnishings and support." He concluded "that this is not an environment that [Danielle] should be caused to endure."
The judge further found that Mary was not cognizant of the specifics of Danielle's health challenges and, more significantly, that caring for those challenges was "beyond her grasp." He also determined that Mary was unable "to offer a viable plan that would allow her to have primary decision making authority under the supervision of others." In addition, he found that Mary would not be able to overcome the harm that Danielle would experience if she were separated from the foster parents.
The judge's findings are supported by substantial evidence in the record. Mary was evicted from her apartment in February 2012, and admitted that her new apartment smelled like sewage. A Division visit three weeks after her move found the apartment unclean and mattresses on the floor, even though the Division had previously provided bed frames. Earlier reports had described Mary's apartments as messy, smelly, and containing roaches and bedbugs.
Mary's health challenges are indeed tragic. However, the fact "[t]hat the parents may be morally blameless is not sufficient to tip the scales in their favor." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The statute "speaks to the 'best interests of [the] child,' not simply the presence or absence of culpable fault on the parents' part." R., supra, 155 N.J. Super. at 195.
In addition, Williams testified that Danielle would be harmed by being separated from her foster parents, whom she viewed as her psychological parents, and that Mary would be unable to mitigate this harm. This is an explicit statutory consideration under N.J.S.A. 30:4C-15.1(a)(2).
Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the first and second prongs of the best interests test.
B.
Mary next argues that the Division did not make reasonable efforts to reunite the family by providing services. She contends that the Division failed to facilitate adequate visitation, did not offer her individual mental health services to treat her depression, and failed to provide adequate assistance to help her ambulate, including support in obtaining medical insurance, prosthetic legs, and accessible housing.
N.J.S.A. 30:4C-15.1(a)(3) "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. Reasonable efforts are defined by N.J.S.A. 30:4C-15.1(c) to mean
attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:Nevertheless, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393. "These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid.
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the
child's progress, development and health; and
(4) facilitating appropriate visitation.
With respect to visitation, Mary cites I.S., supra, 202 N.J. at 178-180, in which the Supreme Court found that one hour of visitation per week at the Division's office was insufficient and contrary to the Division's own regulations. N.J.A.C. 10:122D-1.1(b) provides that "for most children in out-of-home placement, the goal is to hold a visit every week for a period as long in duration as possible." "The frequency and length of each visit shall be based upon the needs of the child, the parent, and other involved parties" and "[s]pecial consideration shall be given to the need for pre-school children to have frequent visits since their sense of time is different than that for older children or adults." N.J.A.C. 10:122D-1.14(a)(3).
In this case, the Division offered more than the one hour found insufficient in I.S. It initially offered two hours per week, and increased this to three full-day visits per week, which were conducted at Mary's home. Interruptions in visitation were occasioned by Mary's health and housing problems, including multiple hospitalizations and, at one point, an unsuitable apartment.
Significantly, in our view, Williams opined that the visitation provided by the Division was sufficient to promote bonding. The trial judge found his testimony credible.
Although the Division did not offer individual counseling, it did provide group therapy to Mary and her family. In any event, the experts agreed that it was primarily Mary's physical problems that were preventing her from caring for Danielle. The Division provided food, clothing, furniture, a security deposit, nursing services, parenting aides, and transportation assistance. We conclude that any failure to provide individual therapy does not render the Division's efforts unreasonable.
With respect to Mary's problems with ambulation, the Division referred her to the Board of Social Services and the Community Health Law Project to aid her in receiving food stamps and social security benefits. It also referred Mary to N.J. Access Link for transportation, which she did not pursue for over a year, at which point the Division scheduled an intake appointment that Mary missed. Mary completed her Medicaid application during a hospitalization in March 2009, and eventually obtained coverage. She never sought the Division's assistance in obtaining her prosthetics. Mary's failure to schedule appointments and to follow up, despite inquiries from Division workers, does not make the Division's efforts unreasonable.
With respect to housing, the Division provided a security deposit and assistance with completing a Habitat for Humanity application. Mary declined to move when the Division offered her assistance in finding a first floor apartment.
Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the third prong of the best interests test.
C.
Finally, Mary argues that the Division failed to demonstrate that "[t]ermination of parental rights will not do more harm than good" by the required standard.
Williams, whom the judge found to be credible, testified that Danielle was "securely and positively bonded with her foster parents." He further testified that, although Danielle was familiar with Mary, he "did not see anything that would indicate a bond." He opined that Danielle "would suffer significant and enduring psychological distress if removed" from her foster family, and that Mary would not be able to mitigate this harm as she "is very much consumed by her own issues." In contrast, he did not believe that Danielle would suffer distress if Mary's parental rights were terminated.
The trial judge's factual determination that termination of Mary's parental rights would not do more harm than good was amply supported by evidence in the record. In light of the strong bond between Danielle and her foster family, it would not have been appropriate to keep Danielle in limbo in hopes of potential reunification in the distant future. See A.G., supra, 344 N.J. Super. at 438. In addition, kinship legal guardianship is "inappropriate" where, as here, "adoption is both feasible and likely." N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003); N.J.S.A. 3B:12A-6(d)(3).
Consequently, we conclude that the Division satisfied its burden of proof as to the fourth prong by clear and convincing evidence.
IV.
Based upon our review of the record, we are satisfied that the trial judge's findings of fact are fully supported by clear and convincing evidence found in the record and that his conclusions of law are consistent with the applicable law. We see no indication that the judge's findings "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION