Opinion
DOCKET NO. A-2631-11T3
03-08-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.A., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.Z.A., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.Z.A. (Phyllis G. Warren, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-197-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.Z.A. (Phyllis G. Warren, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
When the State seeks to terminate parental rights, the Division of Youth and Family Services (the Division) must prove by clear and convincing evidence all four prongs of the following statutory test:
On June 29, 2012, Governor Christie signed into law A-3101, which reorganized the Department of Children and Families. The Division of Youth and Family Services is now the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;Defendant T.A. (Theresa) appeals from the Family Part order terminating her parental rights to her daughter, Jane. Theresa contends that in this case, the Division failed to prove each and every part of the statutory test. The Division and the Law Guardian argue that the evidence was clear and convincing as to each of the four standards and urge us to affirm the order under review.
(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).]
We have fictionalized the first names of those involved.
We have considered the arguments raised in light of the record and applicable legal standards. We affirm substantially for the reasons expressed in Judge Octavia Melendez's comprehensive written opinion of December 19, 2011.
I.
Jane was born in April 2003. Although the child's birth certificate did not name her father, defendant M.D. (Michael) was subsequently named as her biological father. Referrals regarding Theresa's alleged drug abuse and physical abuse of Jane were first made to the Division in March 2007 and February 2009, but investigation resulted in both being unfounded. A third referral, in December 2009, alleged Theresa had physically abused Jane, but, it also was unfounded. During the course of that investigation, Theresa acknowledged she was being treated for bi-polar disorder at the South Jersey Behavioral Health center (South Jersey) and was taking medication. Theresa also acknowledged her past substance abuse, in particular, marijuana (THC) and phencyclidine (PCP); she was seeking substance abuse treatment at South Jersey.
While the litigation was pending, Michael surrendered his parental rights and has not participated in this appeal.
The Division secured Theresa's records in which she reported a troubled childhood, including a period of incarceration as a teenager because "she burned someone's house down." Theresa was seeing a private psychiatrist, Dr. Y. Georges Dubois, to whom she reported having auditory hallucinations. Dubois prescribed Cymbalta and Risperdal. In February 2010, Dubois noted that the medication seemed effective.
Another referral was made to the Division on February 14, 2010. The referring party claimed Theresa was smoking "wet," i.e., marijuana laced with PCP, and her home was being used to package drugs for distribution. The Division responded, but found no evidence that Theresa was under the influence or that drugs were in the apartment. Two days later, the Division received another referral claiming that Theresa was outside her apartment screaming, hollering and acting irrationally. Again, upon investigation, the Division could not confirm Theresa's drug use.
However, an appointment was scheduled with the Substance Abuse Initiative (SAI), and Theresa was requested to submit a urine sample. Three samples taken at the end of February and early March tested positive for marijuana and PCP. On March 12, the Division effectuated an emergency Dodd removal, and, on March 19, the Division filed a Verified Complaint and Order to Show Cause seeking care, custody and control of Jane. The Family Part judge granted the Division custody, finding Theresa "ha[d] a substance abuse problem and ha[d] tested positive for PCP and THC [three] times in the past month . . . ." After a brief placement in a foster home, Jane was placed with her godmother, L.Q. (Lisa), someone Theresa recommended to the Division.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which as amended is found at N.J.S.A. 9:6-8.21 to -8.82." Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (citation omitted).
SAI scheduled an intake appointment for Theresa in April with the Sikora Center for outpatient substance abuse and mental health treatment. At intake, Theresa tested positive for marijuana and PCP. Although Theresa attended counseling at Sikora, she continued to test positive during the month. SAI concluded other treatment options needed to be explored because Theresa was "not committed to treatment."
Positive drug screens continued throughout May, and SAI found another placement for Theresa at Cooper House, an intensive five-day per week outpatient program. Theresa continued to test positive throughout the month of May, including the day of her intake appointment at Cooper House. Although the court permitted supervised visitation between Theresa and Jane, in May, Lisa requested that all visits occur at the Division's offices because, according to Lisa, Theresa would bring friends "she [got] high with to visit [Jane]." In July, the Division caseworkers noted that Theresa arrived for a visit with a black eye and bruises on her arms and back; she acknowledged having a fight with another woman.
After conducting a fact finding hearing on July 30, 2010, the judge concluded that the Division had failed to demonstrate that Jane was an "abused and neglected child under [T]itle 9." However, the judge also concluded that Theresa required services "under Title 30" to address her mental health and substance abuse issues.
In August, Cooper House discharged Theresa for non-compliance, noting she continued to use alcohol and PCP during her attendance. Theresa was referred to the Center for Family Services (CFS) for further evaluation in September. She again tested positive for PCP on the date of her intake evaluation. Teresa was placed with Unity Place, which provided "partial care services for mentally challenged adults."
Theresa attended and completed a parenting course during this time and, although her attendance was initially sporadic, she eventually became more compliant with the substance abuse counseling scheduled. In February 2011, Unity Place reported that Theresa had "been dealing with her addiction issues much more effectively since starting [the] program." Nonetheless, a Division contact sheet recording an interview with Theresa the same month reveals her admitted continued use of PCP. Theresa had not submitted a clean urine screen during the prior six-month period.
In March 2011, inpatient placement was secured at the Bergen Regional Medical Center (Bergen Regional), commencing in May. Also, on March 2, the judge rejected the Division's permanency plan, which, at the time proposed termination of parental rights followed by adoption. The judge ordered the Division to "fully explain" the option of kinship legal guardianship (KLG) to Lisa. On March 31, 2011, however, the judge accepted the Division's permanency plan, which remained termination with adoption by Lisa, who had indicated her desire to adopt Jane and not participate in a KLG placement. The Division filed a complaint for guardianship on May 12, 2011.
During a psychiatric evaluation conducted by Dr. Basant K. Singh on May 3, 2011, Theresa reported she was "fine" and had "no problems." Singh noted "a visible bruise" around her eye, and Theresa reported "she was jumped last week when she was at her friend's house and . . . had to go to the hospital." She reported the incident to the police, but could not identify "the people who were there at her friend's house." Singh concluded Theresa suffered from "Bipolar Disorder, manic type," and "Polysubstance Dependence, PCP abuse."
At the end of May, Theresa reported to the Division that she had completed her treatment at Bergen Regional. At trial, the Division's caseworker, Jennifer Perez, testified that this was a "de[-]tox program" of approximately one-week's duration. Upon her release, Theresa was again admitted to counseling at Unity Place, but her attendance during the summer months was sporadic. She continued to test positive for PCP use; for example, her in-court screen during a July case management conference was positive.
On July 4, Lisa called the police because Theresa came to her house to see Jane and was "high on PCP." Lisa obtained a restraining order and reported the incident to the Division. At another case management conference on August 9, Theresa again tested positive for PCP.
Linda R. Jeffrey, Ph.D., conducted a psychological evaluation of Theresa, and bonding evaluations between Theresa and Jane, and Lisa and Jane, on August 11, 2011. Theresa told Jeffrey that she had been unemployed for the last two years, although she also reported being "self-employed" in the last five years. Theresa received "SSI and food stamps." Theresa claimed to have been drug-free for three weeks.
Jeffrey formed a series of "diagnostic impressions," that included: "Substance Dependence Disorder, Bipolar Disorder, Rule out Substance-Induced Mood Disorder, [and] Personality Disorder NOS with antisocial, narcissistic, schizotypal and paranoid features . . . ." Jeffrey further opined that Theresa's "substance dependence, mental health problems, and adjustment problems seriously decrease her parenting capacity . . . ." Theresa was "not prepared to provide responsible, reliable, consistent or safe parenting for her daughter to a minimal level of safe parenting."
During the bonding evaluation, Jeffrey noted that Jane recognized Theresa as her mother and "displayed and received affectionate gestures . . . including hugs, kisses and verbal affirmations of love." Jane "expressed distress at the end of the session" and "cried at separation." Theresa conveyed to Jane that she was "powerless to affect the outcome of the case." Jeffrey noted it "appeared very likely that [Jane], age[] 8, [did] not know her mother continued to abuse PCP . . . and failed to complete substance abuse treatment." Jeffrey also noted that Theresa complained about the Division's involvement, which "reflected poor boundaries and parentifying of [Jane]."
Nonetheless, Jeffrey concluded there "appeared to be a strong emotional tie between [Jane] and [Theresa]." Termination would likely "cause some harm to [Jane][,]" but, given the strong adjustment Jane made to being with Lisa, Jeffrey concluded it "would be unlikely to cause serious and enduring harm."
Jeffrey noted that Lisa "soothed" Jane after the evaluation with Theresa. Jane discussed all the activities she was involved in with Lisa and at school. Jeffrey noted a "loving rapport and strong emotional tie" between the two. Lisa "displayed positive parenting authority with [Jane]." Jeffrey concluded Jane was "securely attached to her foster mother[,]" and displayed "respect for her parenting authority, and a sense of security, trust and comfort in her relationship . . . ." Jeffrey believed Lisa would "likely . . . be able to support and care for [Jane's] feelings if her relationship with her birth mother [was] terminated."
The guardianship trial commenced on November 14 and continued November 17 and 29, 2011. Perez testified as to much of what we recited above. She also testified that Theresa provided adequate food, housing and medical care for Jane before the child was removed. Theresa also made sure Jane attended school and her house was well kept. Perez acknowledged that Jane still wished to return with her mother, but, "if she's not able to, then she will stay with [Lisa]." The Division also called Jeffrey as its expert witness, and her testimony was consistent with the reports she authored which we referenced above.
Theresa testified and described home life with Jane before her removal. Theresa was receiving SSI benefits and did "hair . . . on the side and . . . favors for people . . . ." When asked what she meant, Theresa testified: "I take people places, I help them, I help them, I like helping people." Theresa was continuing treatment at Unity Place, but acknowledged having a positive test "last month." She admitted telling her counselor that she was still "using." Theresa also acknowledged that she was "taking [her] medication but not as required."
An order entered on the last day of testimony, November 29, 2011, indicates Theresa "left prior to participating in an in-court drug screen." On December 19, Judge Melendez entered the order terminating Theresa's parental rights to Jane. This appeal followed.
II.
We set forth some of the well-known principles that guide our review. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy . . . four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The four prongs require a fact-sensitive analysis and "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." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted).
A.
Theresa argues that the Division failed to demonstrate she harmed Jane or presented a risk of harm to the child. Citing our recent decision in Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011), Theresa contends "there was no testimony concerning the impact of the substance abuse on [her] behavior such that it would create a risk of harm to [Jane]." We disagree.
"Under prong one of the best-interests test, [the Division] must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)) (citation omitted). The Division need not "wait until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (internal quotation marks and citation omitted). "[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent." M.M., supra, 189 N.J. at 289.
In addressing prong one, Judge Melendez noted Theresa "has consistently tested positive for PCP throughout the Division's involvement with the family." The judge noted Theresa admitted to her continued use of PCP and acknowledged her "longest period of abstinence" was one month. Although Theresa "was able to provide for [Jane]," the judge concluded "there will always be a safety concern as a result of residing with a parent who abuses drugs, particularly PCP, and suffers from bipolar disorder." Citing Jeffrey's report, the judge noted that "PCP abuse may include symptoms mimicking schizophrenia, including delusions, hallucinations, disordered thinking and extreme anxiety." These can last for hours. Judge Melendez concluded that Theresa's PCP use "alone pose[d] a substantial risk to the safety of [Jane]."
Theresa's reliance on V.T. is misplaced. There, we "accept[ed] the trial judge's factual findings that [the defendant] did not fully cooperate with recommended drug treatment and tested positive for cocaine and marijuana at two supervised visits[,]" but "disagree[d] that such behavior inherently created a substantial risk of harm to [the defendant's child]." V.T., supra, 423 N.J. Super. at 330. However, the defendant in V.T., "completed parenting skills and anger management classes ordered by the family court," "completed substance abuse treatment" and "stated that he no longer used corporal punishment because he learned alternative means of discipline through the courses he was attending." Id. at 324-25, 327.
The New Jersey Supreme Court recently held that "not every instance of drug use by a parent . . . standing alone, will substantiate a finding of abuse and neglect . . . ." N.J. Dept. of Children and Families v. A.L., _ N.J. _, _ (2013) (slip op. at 25). Instead, the focus should be "on the risk of substantial, imminent harm to the child . . . ." Ibid. In A.L., the Court addressed a question "of statutory interpretation": "whether a court can find 'abuse' or 'neglect' of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born." Id. at 2 (emphasis added). This case is not factually or legally analogous to A.L..
In this case, Theresa continued to abuse PCP during the litigation and never demonstrated any ability to overcome her drug addiction. Jeffrey described the pernicious effects, in particular, of PCP addiction. Although she was generally able to provide for Jane's needs, Theresa exhibited signs of physical violence twice during the litigation.
We note that "[t]he absence of physical abuse or neglect is not conclusive" as to prong one. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) (citation and quotation marks omitted). The test is "whether the child's safety, health or development will be endangered in the future and whether the parent[ is] or will be able to eliminate the harm." Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (emphasis added). We conclude that Theresa's continued use of PCP posed a clear risk of future harm to Jane, and we agree with Judge Melendez that the prong one evidence was clear and convincing.
B.
Theresa argues that she demonstrated a clear willingness to address her substance abuse problems; therefore, it was error to conclude the Division proved prong two. We again disagree.
The second prong "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).
Judge Melendez concluded that, "despite attending numerous treatment centers[,]" Theresa "continued to struggle with her substance abuse" and "ha[d] not cured or overcome the harm that endangered the health, safety, or welfare of [Jane]." Lisa provided Jane with a safe and secure home since her removal.
We do not question Theresa's good intentions. However, the record demonstrates beyond cavil that her PCP abuse is intractable. There is no reason to conclude that she will be able to overcome her addiction in the reasonably foreseeable future so as to address the needs of her daughter. We agree with Judge Melendez regarding the prong two evidence.
C.
Theresa acknowledges that the Division "provided [her] with drug treatment and mental health programs," but claims the prong three evidence was insufficient because the Division "made no effort" to re-evaluate her despite some experts noting her mental health problems were untreated or unresolved. We think the argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We add only the following.
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," as actions "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure . . . ." The third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281. The reasonableness of the Division's efforts "is not measured by their success." K.H.O., supra, 161 N.J. at 393. Ultimately, "[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007).
Judge Melendez recounted the Division's efforts, including supervised visitation between Theresa and Jane, transportation assistance, parenting classes and a host of counseling opportunities. Contrary to Theresa's claim, the record amply demonstrates that she was provided continuous assistance and treatment for her mental health issues. We agree that prong three was satisfied.
D.
Theresa contends that the fourth prong was not proven because Judge Melendez's reliance on Jeffrey's testimony "was in error." She claims that the record evidence did not support Jeffrey's expert opinions.
The statute's fourth prong mandates a determination as to "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. It "serves as a fail-safe against termination even where the remaining standards have been met." Ibid. (citation and quotation marks omitted). The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes whether "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." Id. at 355.
In considering the fourth prong, Judge Melendez credited Jeffrey's testimony that Jane's attachment to Lisa was "secure" and, if severed, Jane "would suffer severe and enduring harm." The judge also credited Jeffrey's conclusion that, although Jane and Theresa shared an "emotional attachment," it was "insecure." The judge noted that Jane would suffer harm either way -- if the parental relationship continued or if it was severed. However, Judge Melendez accepted Jeffrey's opinion that Lisa could ameliorate the harm caused by severance, but Jane would continue to be at risk of harm if the parental bond was not severed.
We note that the judge had the opportunity to consider Jeffrey's testimony first-hand and with the benefit of extensive cross-examination. She obviously concluded the opinions Jeffrey offered were supported by sufficient, credible evidence, and our independent review of the record reveals no reason to disturb those findings.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION