Opinion
DOCKET NO. A-0004-12T1
02-04-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.M., Defendant-Appellant, and A.N., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF C.N. and C.N., Minors.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief). Michelle D. Perry-Thompson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Perry-Thompson, on the brief). Todd Wilson, Designated Counsel, argued the cause for minors C.N. and C.N. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris, and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-154-12.
Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief).
Michelle D. Perry-Thompson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Perry-Thompson, on the brief).
Todd Wilson, Designated Counsel, argued the cause for minors C.N. and C.N. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). PER CURIAM
Defendant S.M. (Sandra) appeals from the July 16, 2012 judgment of guardianship terminating her parental rights to two of her children, Cl.N. (Charles) and Cn.N. (Christopher). The boys' father, A.N., surrendered his parental rights to both children. Because the Division of Child Protection and Permanency (the Division) proved all four statutory prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, we affirm.
We employ fictitious names to protect the privacy of the minor children and for ease of reference.
I.
Sandra began using drugs as a teenager and was convicted in 2001 of possession of a controlled dangerous substance and sentenced to probation. She continued to use drugs while on probation, testing positive in 2001, 2002, and 2004. After violating her probation, she was sentenced to the Drug Court program. Although she completed that program, she continued to abuse drugs.
"Drug Courts are specialized courts within the Superior Court that target drug-involved offenders who are most likely to benefit from treatment and do not pose a risk to public safety." State v. Meyer, 192 N.J. 421, 428 (2007).
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Charles was born on September 30, 2004, and Christopher, on August 17, 2007. In May 2007, while she was pregnant with Christopher, the Division received a referral that Sandra was abusing alcohol and phencyclidine (PCP), and had left Charles with her sister Sh.M. (Sheila), who was not permitted to care for any children because she was substantiated for neglect in 2006. Sandra denied knowledge of her sister's history and the referral was deemed unfounded.
In June 2007, the Division received a referral from Cooper Hospital that in March 2007, Sandra tested positive for PCP during a prenatal visit while pregnant with Christopher. Because the referral was received three months after the test, the Division chose not to investigate the allegation.
On December 6, 2007, the Division received a referral that Sandra appeared to be high on narcotics, and was incoherent. The Division investigated, and Sandra admitted to the caseworker that she had smoked marijuana, but denied using it in the presence of the children. Sandra declined services, and the Division closed the case.
On January 2, 2008, the Division received a referral that Sandra had left five-month-old Christopher alone on her front steps. A neighbor found him and called the police, who brought the baby to the hospital. Sandra claimed that she stepped away momentarily. The Division substantiated Sandra for neglect and she was referred for a substance abuse evaluation.
On January 14, 2008, the Division received another referral that Sandra was abusing PCP and marijuana. Sandra admitted to using PCP, marijuana, and alcohol, but denied that it affected her ability to care for her children. She refused to attend a substance abuse evaluation or give a urine sample. During a subsequent family team meeting, a Division substance abuse evaluator observed that Sandra appeared to be on drugs.
Sandra completed a substance abuse evaluation and was referred to a treatment program. After Sandra refused to complete a safety plan or participate in the treatment program, the Division filed a complaint for care and supervision of Charles and Christopher. Sandra again refused to take a drug screening, but admitted that, if tested, she would test positive for marijuana. The Division was awarded care and supervision of the children and Sandra agreed to a safety plan. When Sandra again refused to participate in a treatment program, the Division executed an emergency removal of the children.
The court ordered the children returned to Sandra as soon as she began substance abuse treatment and childcare was arranged. Sandra tested positive for PCP and marijuana in court and refused referrals for services.
The Division explored placing the children with their father but he had a gun charge pending. The maternal grandmother declined to take them and no other relatives were identified as placement resources.
On February 22, 2008, Sandra began treatment at My Father's House and the children were returned to her one week later. Two weeks later, at a court hearing, Sandra tested positive for drugs again and the children were again removed and placed in foster care.
In April 2008, My Father's House reported that Sandra had made significant progress since the start of treatment. In May 2008, the court returned custody of the children to Sandra, who initially complied with services and provided negative urine screens.
In July 2008, Sandra again tested positive for PCP but the children remained in her custody. On August 1, 2008, Sandra called a Division caseworker and stated that she left the home, the children are alone, and the Division should go get them. She stated that "she no longer wanted her children" and that "she has had it." Sandra admitted that she had not attended the program at My Father's House since June of that year. Charles "expressed that he no longer wanted to remain in the home and wanted to 'go with his DYFS worker.'" The children were removed from Sandra a third time and she was substantiated for neglect.
On August 5, 2008, the Division was granted custody. Sandra tested positive for marijuana and PCP in court and appeared lethargic and non-responsive. On the following day, Sandra was arrested and jailed for assaulting her sister. While incarcerated, she was charged with aggravated assault of four corrections officers.
After Sandra submitted to a psychological evaluation, Dr. Meryl Udell found that she suffered from moderate depression and mild anxiety, and had potential for emotional and behavioral problems. Dr. Udell recommended a long-term inpatient drug treatment program and individual counseling.
In November 2008, Sandra stipulated that she abused or neglected the children and admitted to using drugs and leaving the children alone without appropriate supervision when she asked the Division to take her children. The court ordered Sandra to attend substance abuse treatment at My Father's House, submit to urine screens, attend counseling at Center for Family Services, and submit to a hair follicle test. The following day, Sandra's hair follicle test was positive for PCP.
Sandra attended treatment at My Father's House and initially made progress. She began supervised visitation with the children at Robin's Nest, Inc. but she was terminated from Robin's Nest in March 2009, due to her continued drug use.
The court ordered another hair follicle test and agreed to return the children if Sandra tested negative, but the test was positive for PCP.
In March 2009, Sandra was sentenced to probation for her assault on the corrections officers. In May 2009, Sandra resumed visitation with the children at Robin's Nest but those services were again terminated after two months for her noncompliance with drug screening and substance abuse treatment.
Also in May 2009, Sandra began an intensive outpatient drug treatment at Cooper House but was discharged in June for non-compliance. The program workers suspected that Sandra was "cleaning her urine" because she provided a sample that was below body temperature and refused to give a second sample. She also exhibited angry disruptive behavior. Sandra's mother told the Division that Sandra had been submitting her sister's urine for drug tests. Sandra later admitted to smoking PCP.
Sandra was readmitted to Cooper House in July 2009, but was terminated three weeks later when she tested positive for alcohol and PCP. Sandra then enrolled in outpatient drug treatment at Sikora, but never attended, missing five scheduled intake appointments.
After completing another substance abuse assessment in September 2009, Sandra tested positive for alcohol and was recommended for an inpatient program. She was referred to Turning Point, and then Bergen Regional Medical Center for treatment.
The Division explored placement of the children with their paternal grandmother and a paternal aunt but neither were able to care for them. A.N. was not a placement option, as he was incarcerated in Pennsylvania serving a sentence for a firearms offense.
In November 2009, Sandra began treatment at Bergen Regional Medical Center and was successfully discharged and referred to aftercare treatment at Kennedy Hospital.
In December 2009, the Division filed a complaint for guardianship of the children. In February 2010, Sandra began outpatient substance abuse treatment at SODAT but was discharged two months later for failing to attend all of the treatment sessions.
After Christopher was diagnosed with a cognitive learning delay and anger issues, the Division began to provide early intervention services. Dr. Walter Frankel performed a psychological evaluation of Charles and concluded that his behavioral issues could be addressed with a secure and consistent family environment. Dr. Frankel recommended that Sandra attend a parenting skills class but after the Division arranged for the classes, Sandra was terminated for failure to attend appointments.
In April 2010, Sandra was arrested for aggravated assault and unlawful possession of a weapon and incarcerated until December 2010, when she was sentenced to one year probation.
On May 13, 2010, Sandra submitted to a psychological and bonding evaluation by Dr. James Loving. Dr. Loving diagnosed her with alcohol and drug abuse, adjustment disorder with chronic anxiety and depressed mood, and antisocial personality traits. He "cautiously" recommended that the Division continue working toward reunification notwithstanding Sandra's arrest, because she had "a fair prognosis for achieving safe, appropriate reunification[.]" Dr. Loving also found that the children demonstrated an attachment to Sandra.
In June 2010, the court dismissed the guardianship complaint and re-opened the care and supervision docket. The judge noted that Sandra had "completed inpatient substance abuse treatment and will be resuming intensive outpatient treatment with SODAT upon her release from jail and both children are bonded to her per the Division's psychologist expert; the Division will continue to work with her toward[] reunification with both children."
In October 2010, the court rejected the Division's plan for termination of parental rights because A.N. had recently been released from jail and the Division was ordered to provide him with services.
Dr. Ronald S. Gruen completed an updated psychological and bonding evaluation of Sandra and the children and concluded that she is narcissistic and remained a "drug dependent person psychologically," and prone to re-abusing. He found a mild bond between Sandra and Charles, but no bond with Christopher, and concluded "neither child would suffer significant emotional harm" if Sandra's parental rights were terminated. Dr. Gruen found that Christopher was already bonded to his foster mother, and Charles would do so rapidly if Sandra's parental rights were terminated.
After Sandra's release from jail, she resumed visitation with the children and was referred to substance abuse treatment after testing positive for alcohol. In March 2011, Sandra was enrolled in outpatient treatment but tested positive for alcohol and oxycodone.
In March 2011, the Division filed a second guardianship complaint but the court ordered the Division to continue to provide services to Sandra including paying for a security deposit and first month's rent for housing. Sandra failed eight urine tests for alcohol from March to May 2011.
Sandra submitted to another psychological and bonding evaluation by Dr. Jamie Gordon-Karp who concluded that reunification was not in the children's best interest because Sandra had not demonstrated the ability to live substance-free and participate in treatment.
In October 2011, Sandra began outpatient substance abuse treatment, attended regularly, and tested negative for substances through November 2011. Dr. Gordon-Karp then recommended the children be returned to their mother. Based on that recommendation, the court returned custody of the children to Sandra and dismissed the guardianship litigation.
In January 2012, the Division received a referral that Sandra and her sister were under the influence of drugs and alcohol and had been fighting in the home. Sandra was arrested on a warrant and the children were being cared for by an aunt. When a caseworker determined that the aunt was under the influence of alcohol, the children were removed for the fourth and final time and returned to their previous foster mother. In February 2012, Sandra tested positive for PCP.
In March 2012, the Division filed a third guardianship complaint. Dr. Gordon-Karp conducted another psychological and bonding evaluation and noted that the boys were happy and bonded to their foster mother who expressed interest in adopting them. She recommended that Sandra's parental rights be terminated so that the children could be adopted by their foster mother.
Sandra pled guilty to aggravated assault and was released from jail in May 2012. In June 2012, Sandra again tested positive for PCP while in court.
On July 16, 2012, the Family Part conducted a one-day guardianship trial. Division caseworker Lisa Capone testified to the Division's involvement with the family since 2008.
Dr. Gordon-Karp testified that Sandra was not able to parent her children and she had been given numerous opportunities to demonstrate her fitness as a parent. She recommended that the children should obtain permanency through adoption by their foster mother and it would harm the children to wait longer for Sandra to improve. She testified that the children would suffer severe and enduring harm if separated from their foster mother, including depression, anxiety, and behavior problems, and would not suffer the same level of harm if separated from their mother.
Sandra testified that she was not working and living with an aunt. She admitted that her aggravated assault charges were still pending at the time. Sandra did not present any other witnesses or evidence.
The court issued an oral decision, finding that the Division had proved all four prongs of the "best interests" test pursuant to N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The court found Dr. Gordon-Karp to be credible and accepted her opinions.
The court noted that the children needed permanency and an end to the cycles of removals and reunification, and they had permanency with their foster mother. Given the long case history, any further delay would add to the harm.
The court found that Sandra had endangered the children, was unable to overcome her addiction, and there was "nothing in any of the testimony that would indicate that there would be any difference in the next five years." Sandra's psychological problems resulted in her inability to eliminate the harm for the children, and she was unable to provide a safe and stable home for them.
The court found that the Division had made reasonable efforts to help correct the circumstances and that alternatives to termination of parental rights had been considered.
Finally, the court found that a termination of parental rights would not do more harm than good, accepting the opinion of Dr. Gordon-Karp as to the foster mother's ability to ameliorate any harm caused by separation.
On appeal, Sandra concedes the sufficiency of the Division's proof on the first prong of the best interests test but argues that the Division failed to prove the second, third, and fourth prongs by clear and convincing evidence and, therefore, the court erred in terminating her parental rights to the children.
II.
"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings, 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). The findings of the trial court "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
An appellate court must "rely on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, [as] the trial court is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded her testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). In addition, a family court's findings of fact are entitled to special deference because of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).
There are two exceptions to this very limited scope of appellate review. First, when the trial judge's decision is so wide of the mark, as to be "clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction." Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979). Second, "where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]" Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989).
Termination of a parent's rights occurs when, in the "best interests of the child," the Division meets the following standards by clear and convincing evidence:
(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 criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "Presumptions of parental unfitness may not be used in proceedings challenging parental rights, and all doubts must be resolved against termination of parental rights." Id. at 347.
A.
Sandra argues that there was insufficient evidence to support the trial court's conclusion that she is unwilling or unable to eliminate the harm facing the children or is unable or unwilling to provide a safe and stable home for them, and the delay of permanent placement will add to the harm. She claims the court did not make any findings and there was no evidence at trial that she harmed the children. We disagree.
The second prong of N.J.S.A. 30:4C-15.1(a) is related to the first prong, but the "inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. The focus is on "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The New Jersey Supreme Court has said that
the second prong may be met 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, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.
[K.H.O., supra, 161 N.J. at 353.]
Sandra argues that her drug addiction alone is insufficient evidence of harm to the children, as there was no evidence that drug use occurred in front of the children. She also claims she availed herself of all of the substance abuse treatment provided to her and she was clean at the time of the trial.
Our Supreme Court "has stressed, the attention and concern of a caring family is 'the most precious of all resources.'" DMH, supra, 161 N.J. at 379. "A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid.
Sandra's chronic drug use provided sufficient evidence that she harmed the children, and her numerous relapses were evidence that she was not able or willing to end the harm. Despite several substance abuse evaluations and programs, she continued to use PCP and marijuana. Sandra admitted that she turned to drugs when she was depressed or stressed, the court found that there was no evidence that she would overcome her addiction in the foreseeable future, and her psychological problems show she is unable to eliminate the harm.
Beyond her drug use, Sandra's repeated incarcerations also posed a danger to the children. That was evident when she was arrested in January 2012, and left the children in the care of her sister who had been prohibited by court order not to be in the care of any children and was intoxicated while caring for Charles and Christopher.
Relying on the testimony of Dr. Gordon-Karp that the boys were bonded to their foster mother and would suffer severe and enduring harm if separated from her, the court found that the children would be further harmed by a delay in permanency.
There is sufficient evidence to support the court's conclusion that Sandra was unable or unwilling to eliminate the harm facing the children and a delay in permanent placement will add to the harm.
B.
Sandra also argues that there was insufficient evidence to support the trial court's conclusion that the Division made reasonable efforts to provide services to help her correct the circumstances that led to the children's placement outside the home.
Sandra concedes that the Division arranged "some substance abuse counseling, visitation, and evaluations," but claims the Division "fast-tracked" this litigation while doing nothing to assist her with visitation of her children during her incarceration. We disagree.
For over five years, the Division provided numerous services including substance abuse evaluations, in-patient and out-patient substance abuse treatment, psychological assessments and counseling, domestic violence services, family preservation services, parenting classes, therapeutic visitation, transportation, and funds for housing. Sandra refused many of these services and was discharged from others for noncompliance, continued substance abuse, and nonattendance. The Division also returned the children to Sandra three times, each time having to remove them again.
There is overwhelming evidence that the Division provided reasonable efforts and services to Sandra and the arguments to the contrary lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
C.
Sandra next argues that there was insufficient evidence to support the trial court's conclusion that termination of parental rights will not do more harm than good. Again, we disagree.
The inquiry under prong four 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. In determining "whether the comparative harm is proscribed" by this prong, "the court must inquire into the child's relationship both with her biological parents and her foster parents." Ibid. Overall, "the child's need for permanency and stability emerges as a central factor." Id. at 357.
Additionally, in evaluating whether the child's bonding with the foster parent in itself justifies the termination of parental rights, "[t]he standard is not that the end result cause no pain or trauma but that the child be kept from its parents only to avoid serious and lasting harm." In re Guardianship of K.L.F., 129 N.J. 32, 45 (1992). Therefore, the Division "must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." In re Guardianship of J.C., 129 N.J. 1, 19 (1992).
This determination of harm is a judgment based on expert testimony. J.N.H., supra, 172 N.J. at 478. The State should offer testimony of a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with the foster parent." J.C., supra, 129 N.J. at 19.
When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good. See, e.g., K.H.O., supra, 161 N.J. at 360-61; In re Guardianship of J.C., 129 N.J. 1, 18 (1992). The "good" done to a child in such cases in which reunification is improbable is permanent placement with a loving family, which after all is the principal goal of our foster care system. But even in those situations, we have cautioned that the Division must show "that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." J.C., supra, 129 N.J. at 19.
[N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).]
The trial court accepted the conclusions of Dr. Gordon-Karp that the children would suffer severe and enduring harm if separated from their foster mother, and would not suffer the same level of harm if Sandra's parental rights were terminated. Dr. Gordon-Karp characterized the children's bond with Sandra to be insecure and anxious. Further, the court accepted the conclusion that any sadness and depression the children would experience from losing their mother could be ameliorated by their foster mother. The court found that the best interests of the children were to sever the relationship between them and Sandra. Dr. Gordon-Karp's conclusions as to the harm to the children were accepted by the trial court as credible, and should be entitled deference.
The children's need for permanency and stability is the central factor in analyzing the fourth prong of the statute. Repeated removals and returns of the children undermine their ability to achieve permanency and stability. Dr. Gordon-Karp opined that the only way to ensure permanency for the children is to make them eligible for adoption. The foster mother has indicated a willingness to adopt both children. The court found that Sandra had been given five years to "straighten out this situation" and the children needed an "end to this constant cycle of back and forth."
Given the children's need for permanency and stability, and the low likelihood that Sandra is likely to correct the circumstances in her life that led to the removals, the court's conclusion that termination of Sandra's parental rights would not do more harm than good finds ample support in the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION