Opinion
DOCKET NO. A-4189-11T2
06-25-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent/Cross-Appellant, v. T.T., Defendant-Appellant/Cross-Respondent. IN THE MATTER OF GUARDIANSHIP OF J.T., C.D., and G.D., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent T.T. (Catherine Reid, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent/cross-appellant New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann A. Huber, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors J.T., C.D., and G.D. (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Harris.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FG-09-107-11.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent T.T. (Catherine Reid, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent/cross-appellant New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann A. Huber, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors J.T., C.D., and G.D. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant T.T. appeals from the provision of a March 9, 2012 order, terminating her parental rights to her son G.D. (Gary). The Division of Youth and Family Services (Division) cross-appeals from the provision of the order declining to terminate T.T.'s parental rights to two other children, J.T. (Jill) and C.D. (Carrie).
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
We use fictitious names to protect the children's privacy.
We affirm the judgment of the Family Part, substantially for the reasons stated in Judge Bernadette DeCastro's comprehensive sixty-five page written opinion issued on March 9, 2012, her amended opinion issued April 12, 2012, and her opinion on remand dated August 23, 2012. However, we emphasize that our affirmance is without prejudice to the Division's right to refile the guardianship action with respect to Carrie or Jill, if adoption becomes a realistic prospect for either of them.
I
The guardianship trial spanned eight days, between November 15, 2011 and January 26, 2012. Judge DeCastro's March 9, 2012 opinion addressed the trial evidence at length. Rather than repeat that discussion in the same level of detail, we summarize the most pertinent facts as follows. The case concerns three of T.T.'s children -- Gary, who was born in May 2006, Carrie, born in June 2005, and Jill, born in October 2003. All of the children have special needs, and they have all been in out-of-home placements since January 16, 2008.
All of the children were diagnosed with ADHD. Carrie and Gary were also diagnosed with oppositional defiance disorder and adjustment disorder.
The Division first removed Jill from T.T.'s home in 2003, due to concerns about inadequate housing. Those concerns were quickly resolved and the child was returned to T.T. In 2006, the three children were removed on an emergent basis, when T.T. had a seizure in a Division office. The Division checked on the status of her children and found them living in filthy conditions with a babysitter who was an inappropriate caretaker. The children were returned to T.T. thereafter.
In January 2008, the Division became concerned that T.T. was delusional after she claimed that a baby, for whom she was caring, was her child. The Division again removed the children on an emergency basis, due to concerns about T.T.'s mental health and due to her resistance to the agency's efforts to conduct an investigation.
This pattern of mental health issues and non-cooperation was repeated over the next several years. T.T. repeatedly refused to cooperate with court-ordered drug testing, refused to let the assigned Division case worker inspect her home, and refused to allow psychologists or psychiatrists to evaluate her except on terms that she dictated. She also denied that she was mentally ill, although she periodically experienced mental health crises.
In March 2009, the court approved a permanency plan to reunite T.T. with her children. However, on March 29, 2009, T.T. was admitted to Christ Hospital, reportedly with suicidal ideations based on her ingesting pills and drinking alcohol. On April 3, 2009, T.T. was temporarily committed to a psychiatric facility after she exhibited suicidal behavior and carved her attorney's initials into her arm. During her hospitalization, she admitted that she had a long history of self-mutilating behavior. She was diagnosed with alcohol abuse, depressive disorder and bipolar disorder.
After her release, T.T. completed outpatient counseling provided by C-line, but did not complete additional psychiatric counseling that her C-line therapist recommended. In 2010, she refused to see a psychologist, Dr. Samiris Sostre, whom the Division had offered to provide her with therapy. Instead she demanded, among other things, that the agency pay $44,000 to send her to a program in California, to treat an alleged eating disorder. Between May and July 2011, T.T. was psychiatrically hospitalized several times.
Meanwhile, the children were living in foster care. From January 2008 to September 2010, Gary lived with a foster parent couple, D.W. and M.S. In September 2010, his foster family moved to Georgia. Although they wanted to take Gary with them to Georgia, the court would not permit them to do so over T.T.'s objections. However, the first foster parents have continued to visit with Gary since the move, including taking him on a Christmas vacation to Georgia in December 2011, with the court's permission. They deal well with Gary's special needs and are willing to adopt him. Toward that end, they came to New Jersey for bonding evaluations prior to the guardianship trial.
After the first foster family moved to Georgia, Gary was placed in a second foster home. The second foster parent, J.T., is also willing to adopt him. However, Gary's preference is to live with the Georgia family, and all of the experts who testified supported that outcome.
Carrie has been in several foster homes since 2008. When the guardianship trial began, she was living with her fifth foster parent, G.C., who had expressed an interest in adopting her. However, during the trial, G.C. changed her mind. Jill has also been in several foster home placements. At the time of the guardianship trial, her most recent foster parent, G.P., had decided that she did not wish to adopt Jill.
According to Dr. Frank Dyer, who testified for the Division, both Jill and Carrie are "adoptable." At the time he evaluated Jill, she told him that she wanted to stay with her current foster mother, G.P., rather than returning to live with T.T. However, she also indicated that she very much missed T.T. Dr. Dyer found that Carrie had a strong attachment to T.T. At the time he evaluated Carrie, she was living with G.C., but G.C. had asked that Carrie be removed from her home due to her severe behavioral problems. Dr. Dyer observed that "it appears [T.T.] is the only constant adult figure in [Carrie's] emotional world."
Dr. Dyer evaluated Gary with his current and former foster parents. He found that Gary had the strongest bond with the former foster parents and that they were best able to deal with his hyperactive behavior. He found that the former foster parents were "so competent and attuned" that they could mitigate whatever negative effects might result from separating him from the current foster parent. He further opined that reuniting Gary with T.T. would place the child "at very high risk for severe and enduring emotional harm," which T.T. did not have the ability to mitigate.
Dr. Dyer also evaluated T.T. During that evaluation, T.T. admitted that she had posted Division records on the internet as part of a YouTube video on what she characterized as corruption in the agency. Dr. Dyer found significant T.T.'s "lack of a reality orientation with respect to dealing with [the Division] and her fixed belief that every single thing that [the Division] did that in any way had an adverse effect on her was the result of corruption, malice and under-handedness on the part of the agency."
During the interview, T.T. refused to allow Dr. Dyer to perform the Personality Assessment Inventory, which was designed to measure "clinical syndromes" and "personality disorders." She told him that she had no mental illness and no need for mental health services, and she did not believe the test could measure personality. According to Dr. Dyer, other tests which T.T. did take "indicated very clearly that she has problems in terms of her reality testing." Based on his evaluation as well as her history, Dr. Dyer diagnosed T.T. with bipolar disorder, psychotic disorder not otherwise specified (NOS), and personality disorder NOS with borderline paranoid features. He opined that she suffered from "chronic mental illness."
Dr. Dyer opined that untreated bipolar disorder was a major impediment to T.T.'s ability to act as a parent, because it created mood swings, periods of "frantic activity" alternating with "periods of depression." He testified that her refusal to take medication to manage her bipolar condition, and her other mental health problems, was likely a manifestation of her paranoid personality. He also explained:
As long as [T.T.'s] various disorders go untreated, she remains at risk for further episodes of acting out which seem to take the form of her fabricating some kind of crisis scenario, engaging individuals to come to her aid, then turning on them . . .Dr. Dyer also opined that T.T. was particularly unsuited to raising her three children, because all of them had special needs. Thus they would require "considerably more skill in terms of behavioral management, more understanding, more vigilant supervision." He testified that her "egregious failure to attend to her own" healthcare needs did not bode well for her ability to care for the children's needs.
All of these episodes involve some degree of risk to a child in the subject's care. Number one because it's completely irrational behavior that models absolutely the wrong type of parenting behavior for a young child.
And also potentially exposes the child to a risk of physical harm because some of [T.T.'s] confrontations have involved the police, some have involved allegations that she has attempted suicide . . . .
He noted, for example, that during the bonding evaluation between T.T. and her three children, T.T. repeatedly questioned Carrie about an incident in which Carrie allegedly asked Jill to "kill her." Dr. Dyer noted that T.T. seemed to have no appreciation of how uncomfortable Carrie was with this questioning or how inappropriate and counterproductive it was.
Based on his bonding evaluation, Dr. Dyer concluded that none of the children had a "continuing sustained and deep attachment" to T.T. He found that if T.T.'s parental rights were terminated, it would not be in the children's interest to continue visits with her. He also concluded that the children's need for permanent family placements far outweighed their need for continuing contact with T.T.
The Division also presented testimony from a psychiatrist, Dr. Vivian Shnaidman, who diagnosed T.T. as having interdictal psychosis, which is a psychotic disorder related to a seizure disorder. Based on T.T.'s history and her behavior during her second interview, the doctor also suspected she might have dissociative disorder, or multiple personalities. For example, Dr. Shnaidman testified that, although T.T. was familiar with her from a prior visit, in the middle of her second interview with T.T., defendant's eyes rolled slightly and she asked the doctor, "Who are you? Why am I here with you?"
Dr. Shnaidman opined that T.T. did not understand that she had a mental illness. She explained how a parent with untreated mental illness would have difficulty safely caring for children, especially if the parent had no network of family or friends to help her with the children.
The Law Guardian presented expert testimony from a psychologist, Dr. Alice Nadelman, who attempted to perform a psychological evaluation of T.T. in March and June 2011. According to Dr. Nadelman, she conducted a clinical interview with T.T. in March, but that visit was cut short because T.T. told her that she needed to attend a job interview. Dr. Nadelman was unable to complete the psychological testing portion of the evaluation at the June visit, because T.T. refused to undergo the testing and "stormed out of the office" after twenty minutes. According to Dr. Nadelman, T.T. became infuriated when the doctor mentioned her recent psychiatric hospitalizations and asked T.T. how she would cope with future incidents if her children were living with her.
Dr. Nadelman testified that although T.T. had never intentionally harmed her children, she continued to be unable to safely act as their parent due to her mental illness. She further opined that, while a parent with mental illness could safely parent her children if she knew how to cope with her illness, T.T. had no such insight or ability to cope. Rather, T.T. had no appreciation of her mental illness, her need for treatment, or the potential impact of her illness on her children's welfare. Dr. Nadelman testified that T.T. would not be able to handle three special needs children. Nor would she be able to navigate the educational, medical and social welfare systems in order to obtain the services that they needed.
The doctor testified:
[M]y most serious concern about [T.T.] . . . was my conclusion that she is unwilling and/or unable to distinguish between truth and lie and unwilling and/or unable to distinguish between reality and fantasy and that that is extremely harmful in raising children because you can't raise children to distinguish between what's true and what's not and what's real and what's not if you're unable and/or unwilling to do so. And . . . that severely damages any security or stability that [the children] may have.
. . . .
[S]he has no capacity or such a severely limited capacity to view her children as separate and independent people . . . with feelings, and with needs that are different from her own that . . . it is
almost impossible for her to recognize when they've been harmed, especially when she is the source of that harm.
Dr. Nadelman further opined that each of the children had an overwhelming need for a permanent placement. She stated that none of them had a secure parent-child bond with T.T., and none of them would be seriously harmed if T.T.'s parental rights were terminated. She testified that Gary had formed a strong bond with the former foster family in Georgia, and that placement with that family would be in his best interests. She testified that Jill and Carrie needed select home adoption, a goal that was unrealistic if they were not legally available to be adopted. She further testified that, based on her research, children under the age of eleven have the best chance to be adopted, and children "eight and under had the greatest success rate." The doctor opined that if T.T.'s parental rights were terminated, she should not continue to have visitation with the children because she would attempt to undermine their adjustment to any prospective adoptive placement.
The Division presented testimony from Gayle Williamson, an adoption specialist with the agency. She explained the concept of select home adoption, in which the Division searches for adoptive parents who are neither a child's relatives nor the child's current foster family. She explained that the Division could search for available select homes before a child became "legally free" for adoption. She testified that, in searching the database of available select homes in New Jersey, she found three that met the criteria for Jill's needs. She found two potential adoptive homes in the database for Carrie. She testified that the agency would not look outside New Jersey for potential adoptive homes until a child was legally freed for adoption. Notably, she did not testify that she had contacted any potential adoptive parents to ascertain if they were actually ready, willing or able to adopt these children.
T.T. did not testify or present any other witnesses at the guardianship trial, although she presented some documentary evidence.
To place the trial judge's decision in context, we also summarize an incident that occurred during the trial. We consider this relevant to the judge's decision that termination of T.T.'s parental rights with respect to Jill and Carrie would not be in their best interests because they had no prospective adoptive homes.
In the middle of the guardianship trial, the Division attempted to place Jill in a residential treatment center, a move that the Law Guardian and T.T. vigorously opposed. In response to an emergent motion filed by the Law Guardian, the court heard live testimony concerning the proposed move. During that testimony, a Division supervisor admitted that two psychiatrists had examined Jill and neither of them recommended that she be placed in a treatment center, as opposed to being placed with a therapeutically-trained foster family.
The Law Guardian also presented testimony from Dr. Nadelman, who had evaluated Jill on three occasions, and had interviewed Jill's then-current foster mother. According to Dr. Nadelman, the foster mother felt that she could not care for eight-year-old Jill because she had become less cooperative, said "no" frequently, and demanded constant attention. However, the foster mother did not observe any sexualized or destructive behavior.
Dr. Nadelman testified that Jill's behavior was fairly normal for an eight-year-old and represented progress over her previous behavior, which was overly passive and self-effacing. Dr. Nadelman opined that Jill "absolutely" did not need to be placed in a psychiatric residential community and that such a placement would be "significantly harmful to this child." She also expressed concern that the recommendation had been made by a private behavioral health contractor, none of whose staff had actually interviewed the child. Dr. Nadelman described that placement process as "deeply flawed."
She explained that in a residential treatment facility, Jill would be living with up to nine other children, some of whom would be older than she, and the majority of whom would likely be "demonstrating . . . acting out symptoms." Dr. Nadelman opined that Jill "is a highly anxious youngster. A child who is overly compliant, nonassertive, not aggressive, who would be . . . literally terrorized." She also explained the dangers of placing a "sexually reactive" child, like Jill, in a home with "sexually aggressive" children.
Dr. Nadelman opined that Jill needed to be placed in a "healing" foster home, with foster parents who could help her to become "appropriately assertive" and self-confident. She opined that, with a proper placement, Jill could heal and become ready for adoption. However, she recommended that Jill's next placement be with a foster family that would focus on helping her overcome her trauma, without encouraging her to believe that she would live with that family permanently. Instead, the therapeutic foster family should explain to Jill that they would help her become ready to live with a permanent family.
Dr. Nadelman recommended that Jill should not be placed with her sister Carrie, because the two did not get along and Carrie tended to dominate Jill. She opined that Jill needed to be in a home where she was the only child, or in a home with an adolescent foster sibling whom she could use as a healthy role model. She also testified that any foster home with a loving, patient foster parent would be preferable to an institutional placement.
During the oral argument that followed the testimonial hearing, the Division's attorney explained that, absent a court order to the contrary, the Division was "bound" to follow the recommendations of its private behavioral health contractor. The judge found Dr. Nadelman's testimony credible, and expressed serious reservations "about the way [the contractor] evaluates children without even seeing them and just with a phone call in this case, and reviewing records. I don't know how they can make such an assessment of such a serious nature in that way." She ordered the Division not to place Jill in a "residential facility" and ordered the agency to continue trying to identify an appropriate therapeutic treatment home or foster home.
At a review hearing on March 7, 2012, the Division case worker reported to the court that Carrie had been placed in a therapeutic foster home, and that Jill would be placed in a therapeutic foster home later that week.
On March 9, 2012, Judge DeCastro issued a sixty-five page written opinion. She accepted the testimony of the Division's and Law Guardian's expert witnesses, that T.T. suffers from significant, chronic mental illness, and as a result, has a continuing inability to safely parent her children. The judge found that, due in part to T.T.'s conviction that the Division was conspiring against her, T.T. had unreasonably refused to accept the Division's offers of mental health services and, as a result, her children had been harmed by extended placement in foster care.
The judge concluded that DYFS had established the first three prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), with respect to all of the children. She found that the youngest of the three children, Gary, had an insecure bond with T.T., but had a strong parent-child bond with his former foster parents, the couple now living in Georgia. The judge concluded that the Division met the fourth prong with respect to Gary, and that Gary's best interests would be served by termination of T.T.'s parental rights, followed by his adoption by the Georgia foster family, who remained committed to adopting him.
However, the judge found that the Division did not prove the fourth prong with respect to the two girls, because they were psychologically fragile, had "bounced around" the foster care system, and had no permanent adoptive placements waiting for them. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610-11 (1986). She also considered it significant that their only emotional attachment, however insecure, was to their mother, and terminating that connection with nothing to replace it would harm the children with no "compensating benefit." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 109 (2008). The judge therefore concluded that the Division failed to prove by clear and convincing evidence that terminating T.T.'s parental rights to the girls would not do more harm than good. The judge entered an order on March 9, 2012, terminating parental rights as to Gary but not as to Carrie and Jill. With respect to the two girls, the judge dismissed the guardianship action and reinstated the FN litigation (Docket No. FN-09-174-08).
On April 11, 2012, a different panel of this court rendered a decision on T.T.'s separate Title 9 appeal from a June 3, 2008 order finding abuse or neglect. N.J. Div. of Youth & Family Servs. v. T.T., No. A-0698-10 (App. Div. April 11, 2012). The Title 9 appeal arose from the incident in which T.T. claimed that another woman's baby was her own. The panel found that, although the Division proved that T.T. engaged in bizarre behavior, the Division did not prove that she harmed her children. Id. (slip op. at 14). The opinion noted, however, that a Title 30 finding "that the children are endangered by the parental relationship. . . . must be made based on the evidence addressed during the Title 30 proceeding." Ibid.
On April 12, 2012, Judge DeCastro issued a supplemental opinion in the guardianship case, finding that the decision on the Title 9 appeal did not affect her March 9, 2012 determination, because the Division proved its Title 30 case based on the evidence presented at the guardianship trial.
In Judge DeCastro's March 9, 2012 opinion, she had found based on the Title 30 trial evidence that, in T.T.'s statements to the Division's personnel, T.T. either demonstrated a delusion that she had given birth to a fourth child, or she was engaged in an elaborate effort at deception to keep the agency from finding out that she had given birth to a son in Pennsylvania. In her April 12 amended decision, the judge reiterated that "on the issue of the fourth child[,] the [Title 30] record is replete with reports that T.T. claimed that she had a fourth child." She further found that "[w]hile the finding of abuse or neglect has been reversed by the reviewing court, there are now additional expert reports that undoubtedly demonstrate that the defendant suffers from a mental illness."
On July 20, 2012, a two-judge panel of this court granted T.T's motion for a temporary remand to permit the Family Part to rule on her reconsideration motion in the Title 30 case. On August 23, 2012, Judge DeCastro filed an opinion on remand, explaining that her decision in the Title 30 case "did not rely on the Title 9 fact finding decision." She cogently explained that the record of the Title 30 trial supported her March 9, 2012 decision and that the Appellate Division's Title 9 decision did not warrant changing her decision in the guardianship case. The judge stated that she found "the Division's witnesses to be overwhelmingly credible [and] defendant's 'conspiracy theory' to be wholly incredible."
II
A.
We begin our legal discussion by defining the record and the issues that are properly before us. On this appeal, we are not considering or re-considering the Title 9 fact-finding hearing and its separate record. Rather, as Judge DeCastro correctly noted, the record of this appeal is the testimony and evidence that the parties presented during the Title 30 guardianship trial.
We have denied T.T.'s motion to supplement the record with a psychological evaluation performed in connection with the ongoing reinstated Title 30 proceedings in the trial court, relating to the two girls. T.T. had a chance to present expert testimony in the guardianship case, and she failed to do so. The report she proffered in her motion was not the subject of live testimony or cross-examination. We also note that, with respect to a second court-appointed expert, T.T. engaged in her usual pattern of refusing to be evaluated because the expert did not comply with her terms. We have also denied the Division's cross-motion to supplement the record with additional information which we deem irrelevant to this appeal.
The issue before us is whether Judge DeCastro's decision, based on the Title 30 trial record, is supported by sufficient credible evidence and is consistent with applicable law. See N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556-57, 562 (1994) (confirming that a Title 9 finding of abuse or neglect is not a prerequisite for a Title 30 guardianship action, and an appeal from a Title 9 order does not confer appellate jurisdiction over a separate Title 30 action involving the same parties). We note, however, that during the guardianship trial, T.T.'s attorney extensively cross-examined the current DYFS case worker, Raymond Brown, in an attempt to demonstrate that the January 2008 removal of the children was unjustified. Hence, as Judge DeCastro noted in her opinion on remand, she had the opportunity to evaluate that evidence when she decided the guardianship case. We further note that, as the Supreme Court recently held, Title 30 authorizes the Division to "intervene in a family," including obtaining custody of the children, without a finding of abuse or neglect under Title 9. N.J. Dep't of Children & Families, v. I.S., ___ N.J. ___ (2013).
B.
Parents have a fundamental constitutional right to raise their children without undue interference from the State. E.P., supra, 196 N.J. at 102. But that right is tempered against the State's parens patriae responsibility to protect children from serious physical and psychological harm, even where the child's parent is the source of the harm. Ibid.; In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). When a child's safety and welfare "become so irredeemably jeopardized by parental abuse or neglect, the State may take the most extreme form of action, which is to completely sever the relationship between a mother or father and a child." E.P., supra, 196 N.J. at 102.
The State bears the burden to prove that the parental tie should be severed. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). To meet that burden, it must prove by clear and convincing evidence each of the four statutory factors that are known as the best-interests-of-the-child test. Ibid. The factors are set forth in N.J.S.A. 30:4C-15.1(a):
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;The four-prong analysis must be applied separately as to each child when the child's circumstances are distinguishable from his or her sibling's. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 443 (App. Div. 2009); see N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 284-85 (2007).
(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).]
But, in examining the findings on the four statutory criteria, it is important to recognize that they "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." K.H.O., supra, 161 N.J. at 348. The factors "'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, 259 (App. Div. 2005)).
Our review of Judge DeCastro's decision regarding termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The question is not how we would decide the case if we were making the decision de novo. Rather, our role is to determine whether Judge DeCastro's decision is supported by adequate, substantial, credible evidence in the record. M.M., supra, 189 N.J. at 279. The trial court's findings are to be accorded deference unless they are "'so wide of the mark that a mistake must have been made.'" Ibid. (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)). Further, we owe deference to the trial judge's credibility determinations and to the expertise of the Family Part in handling these types of cases. Cesare v. Cesare 154 N.J. 394, 411-13 (1998).
After reading the twenty-eight volumes of pre-hearing and trial transcripts provided to us and reviewing the parties' voluminous appendices, we are satisfied that the record fully supports Judge DeCastro's factual findings. We find no basis to disturb her evaluation of witness credibility. Her legal conclusions appropriately follow from her factual findings.
On this appeal, T.T. raises the following issues:
I. THE DIVISION DID NOT HAVE STATUTORY AUTHORITY TO SEEK TERMINATION OF T.T.'S PARENTAL RIGHTS TO THE CHILDREN AND THUS THE JUDGMENT TERMINATING PARENTAL RIGHTS AS TO G.D. SHOULD BE REVERSED.
II. THE RATIONALE THAT T.T. WAS NOT COMPLIANT WITH THE DIVISION'S VARIOUS REQUIREMENTS FOR RETURN OF HER CHILDREN DID NOT SUPPORT CONTINUATION OF THIS MATTER AS AN ACTION FOR GUARDIANSHIP OR THE SUBSEQUENT TERMINATION OF T.T.'S PARENTAL RIGHTS.
III. EVEN IF THE DIVISION HAD PROPER "CARE AND CUSTODY" OVER THE CHILDREN SUFFICIENT TO ENABLE IT TO SEEK TERMINATION OF THE PARENTAL RIGHTS, THE RECORD EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT'S CONCLUSIONS THAT THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1a WERE SATISFIED BY CLEAR AND CONVINCING EVIDENCE AS TO ANY OF THE CHILDREN.
A. There was insufficient evidence in the record to support the trial court's conclusion that T.T. either harmed her children or posed a risk of harm to them sufficient to satisfy prong one of N.J.S.A. 30:4C-15.1a and justify termination of her parental rights.
B. There was insufficient evidence in the record to support a finding that T.T. was unable and unwilling to eliminate harm to her children.
C. There was insufficient evidence in the record to support the legal conclusion that the Division made reasonable efforts to reunify this family.
D. There was insufficient evidence in the record to support the legal conclusion that termination of parental rights would not do more harm than good to G.D.
IV. THE RECONSIDERATION DECISION WAS FLAWED IN THAT IT APPLIED A GENERAL "BEST INTERESTS" TEST WITHOUT RECOGNIZING THAT THE FOUR-PART TEST OF N.J.S.A. 30:4C-15.1a IS THE PRESCRIBED TEST TO DETERMINE THE BEST INTERESTS OF THE CHILD AND THAT ALL FOUR PARTS COULD NO LONGER BE DEEMED SATISFIED GIVEN A HIGHER COURT'S DETERMINATION THAT T.T. DID NOT CAUSE THE CHILDREN'S REMOVAL INTO FOSTER CARE.
We find no merit in any of these issues and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The central themes of T.T.'s appeal are that everything that has befallen her and her children in this case is the Division's fault, starting with the January 2008 Dodd removal, and that the agency has not satisfied any of the four prongs of the best interests test. The record does not support those contentions. Rather, the record reflects that beginning in September of 2007, T.T. told the Division that she had given birth to a son named "Joshua." On December 17, 2007, the Division and T.T. appeared at a hearing before Judge DeCastro, to enforce the Division's right to visit with the baby, because T.T. was denying the agency access to him. At that hearing, T.T. refused to tell the judge whether she had given birth to a fourth child.
A "Dodd removal" is an "emergency removal of a child from the home without a court order, pursuant to the Dodd Act," N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).
T.T. later appeared to relent. The record contains a January 10, 2008 report by the assigned caseworker, Grace Amaechi, and a nurse, Linda DeBonis, in which DeBonis described in detail their visit with T.T. and a baby whom T.T. told DeBonis was her son. DeBonis reported examining the infant and recounted T.T.'s elaborate description of giving birth to the baby in New York.
It was against this backdrop that the Division responded, on January 11, 2008, to a distraught phone call from another Division client, V.H., who had been staying with T.T. temporarily, together with V.H.'s new baby. V.H. stated that she had fled T.T.'s apartment with the baby, and reported that T.T. was threatening her and insisting that V.H.'s baby was her own. She showed her caseworker threatening text messages from T.T., demanding the return of "her" baby. On January 15, 2008, T.T. told a Division caseworker that she did not have a baby, even though a few days earlier, she had displayed a baby to DeBonis and Amaechi and described allegedly giving birth. Concerned that T.T. was having serious mental health issues, the Division removed Carrie, Jill and Gary from her home, for their protection.
The concern about T.T.'s mental health was not newfound with this incident. T.T. virtually grew up in the Division's custody, in a group home placement, due to her own mother's mental illness. The record reflects that during her childhood, T.T. had emotional problems and engaged in self-mutilation.
In this context, whether T.T.'s apparent mental illness resulted in abuse or neglect of her children for Title 9 purposes is not dispositive of whether the Division had legal authority to effect a Dodd removal pursuant to its powers under Title 9 and Title 30. See N.J.S.A. 30:4C-12. Clearly, it did, and in a later court hearing, the Family Part approved the emergency removal. The Division does not have to wait until children are actually harmed before intervening for their protection. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). During the guardianship trial, Dr. Nadelman's testimony cogently explained the danger to a child posed by living with a mentally ill, delusional parent.
Moreover, even without a finding of abuse or neglect under Title 9, a court can exercise continuing supervision over a family pursuant to Title 30. See N.J.S.A. 30:4C-12; I.S., supra, ___ N.J. at ___ (slip op. at 35-39); N.J. Dep't. of Children & Families v. A.L., 213 N.J. 1, 19 (2013). Between the date of the Dodd removal in 2008 and the commencement of the trial, the court conducted many interim hearings at which the Division presented testimony justifying the court's continuing jurisdiction over T.T. and her children. See N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 66-67 (App. Div. 2012).
The record further supports Judge DeCastro's finding that T.T. has chronic severe mental illness which she has not acknowledged or successfully addressed, and which precludes her from safely caring for her children. Judge DeCastro properly relied on the testimony of the three expert witnesses who appeared at the trial, all of whom supported that conclusion. T.T. presented no expert testimony to rebut the expert evidence presented by the Division and the Law Guardian. Her appellate brief relies on reports from experts who did not testify at the trial and who evaluated her many years ago.
Perhaps T.T.'s own unhappy experiences when she was a child in the Division's custody caused her to see the agency as her enemy, and led her to oppose rather than cooperate with the services offered to her as an adult. However, T.T.'s inability to cope with her mental health challenges, despite the Division's reasonable attempts to provide her with services, has caused her children severe harm. Even if T.T.'s mental illness itself were at the root of her paranoid fear of accepting services from the Division, that would not change the result in this case. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001) (noting that, with respect to a mentally ill parent, the issue is not whether the parent is blameworthy but whether the child is being harmed), certif. denied, 171 N.J. 44 (2002). Her failure to acknowledge or address her mental illness, and her resulting inability to care for her children, has led to their extended stay in foster care.
T.T.'s lack of insight is illustrated by her comment that her attempt to commit suicide, by ingesting 250 Tylenol tablets, posed no danger to her children because she did not attempt suicide when they were in her custody. T.T. attempted suicide, or was hospitalized with expressed suicidal ideations, several times between 2009 and 2011. Further, several experts noted her pathological inability to distinguish reality from fantasy.
In Gary's case, most of his life has been spent with foster parents. The record reflects that he suffered emotional distress when he was separated from his first foster family, and that they have done their best to stay in contact with him through visits and telephone calls. He has a strong bond with those foster parents, and they want to adopt him. The record overwhelmingly supports Judge DeCastro's decision to terminate T.T.'s parental rights to Gary, so that he can be adopted. We affirm that decision.
By order dated January 16, 2013, a two-judge panel of this court denied the Division's motion to place Gary with his former foster family in Georgia pending the outcome of this appeal. We hereby vacate that order and any prior order staying his placement with the Georgia foster family. Gary may be immediately placed with the Georgia foster family. Due to the strength of the evidence with respect to Gary, the length of time he has been in foster care, and his need for permanency, we see no basis to grant any further stay of that placement or to delay his adoption by the Georgia foster family.
Addressing the Division's cross-appeal with respect to Jill and Carrie, we acknowledge that the decision is not an easy one. But, absent a clear error of law or fact, we must defer to the trial judge, who handled this case for years, heard the witnesses testify, and had a better feel for the case than we could derive from a cold record. See E.P., supra, 196 N.J. at 104. Bearing in mind the deference due to Family Part judges in resolving these difficult cases, we will not second-guess Judge DeCastro's decision that termination of T.T.'s parental rights to Carrie and Jill was not in their best interests, for the reasons she stated in her opinion. The Division's attempt, mid-trial, to place Jill in a clearly inappropriate residential facility instead of a therapeutic foster home, further illustrates the dangers these fragile children might face in the future if they have no adoptive homes and no independent legal representation.
To summarize, we affirm Judge DeCastro's decision that the Division proved the first three prongs of the best interests test by clear and convincing evidence, as to all three children. We affirm her decision that the Division also proved the fourth prong as to Gary, and that T.T.'s parental rights to Gary should be terminated.
We also affirm her decision that the Division did not prove the fourth prong with respect to Carrie and Jill. In particular, substantial credible evidence supports her findings that: the Division does not currently have adoptive homes for the girls; they have behavioral and emotional problems that may make their placement difficult and, therefore, they are at risk to remain in "foster care limbo"; they would not be ready for an adoptive home placement until they had completed their therapeutic home placements; and at the time, T.T. represented their only continuing source of emotional support, even though she was incapable of parenting them. Under those circumstances, the judge found that terminating T.T.'s parental rights would inflict emotional harm on the children, with no countervailing benefit. On this record, we will not disturb the judge's conclusion that, when she rendered her decision, termination of parental rights to the girls would do more harm than good. See E.P., supra, 196 N.J. at 109; A.W., supra, 103 N.J. at 610-11.
If the Division finds adoptive parents for the girls in the future, and if T.T. is at that point still unable to provide them with the safe and permanent home they need, it may be appropriate for the Family Part to revisit the fourth prong.
Should the Division refile the guardianship complaint, the court would be required to consider whether collateral estoppel principles would preclude T.T. from relitigating Judge DeCastro's findings on the first three prongs of the best interests test. Indeed, it would appear that if the Division seeks termination of T.T.'s parental rights as to Jill and/or Carrie, the trial would be focused only on the fourth prong of the test. That inquiry would address the children's current situation, T.T.'s current ability to provide them with permanency, and if she has no such ability, whether there is a permanent adoptive home for each child. Needless to say, if the Division finds a permanent home for one child before the other, the agency may seek to revisit the fourth prong with respect to the child for whom it has found a permanent home.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION