Opinion
DOCKET NO. A-2583-11T2
05-15-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. Z.A. Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.H.A., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brittany A. Wilcox, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.H.A. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-23-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brittany A. Wilcox, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.H.A. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant Z.A. appeals from the October 19, 2011 judgment of guardianship of the Family Part terminating her parental rights to her daughter, A.H.A. (Anna). She argues the Division of Youth and Family Services (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court. We affirm substantially for the reasons expressed by Judge Verna Leath in her well-reasoned written opinion.
A fictional name is used to protect the privacy of the child and for ease of reference.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
I.
The Division presented the testimony of three witnesses at the guardianship trial: the case manager, Shannon Johnson; Susan's foster parent, R.S.; and clinical psychologist, Dr. Eric Kirschner. In addition to her own testimony, defendant presented testimony from her father, K.A.; clinical psychologist, Dr. Richard Klein; and Anna's aunt, S.J.
The evidence at trial revealed that defendant tested positive for marijuana at the time of Anna's birth. The child did not. Defendant admitted to using marijuana throughout her pregnancy. The Division determined that the allegation of abuse and neglect was "unfounded," but it entered into a case plan with defendant in which she agreed to participate in substance abuse and psychological evaluations and parenting skills training. The Division also obtained care and supervision of defendant's two sons, I.Y.A. and Z.N.M.
The Division arranged for substance abuse and individual counseling for defendant and scheduled parenting classes for her. She did not attend and she continued to test positive for marijuana and other drugs, including PCP.
In June 2009, the Division received a referral from a hospital about a woman who had just given birth to a child and the mother and the child had both tested positive for marijuana. The woman had left the hospital against medical advice, leaving the child behind. Subsequent investigation revealed defendant was the woman involved and that she had given the hospital a false name in order to prevent the Division from learning of the birth. After obtaining a court order, the Division took custody of all four of defendant's children, Anna, I.Y.A., Z.N.M., and the newborn, K.H.
Defendant surrendered her parental rights to I.Y.A. and Z.N.M., on October 19, 2011 in order to enable her father, K.A., to adopt them. K.H.'s father has had custody of her since November 4, 2009.
At a July 13, 2009 substance abuse assessment, defendant tested positive for marijuana and amphetamines. From that date through the date of the trial, defendant continued to be non-compliant with substance abuse, counseling, and parenting skills services and she continued to test positive for drugs.
Just as critically, defendant failed on four separate occasions to complete a psychological and bonding evaluation with Dr. Kirschner. From his review of the available records, Dr. Kirschner opined that defendant demonstrated a repeated pattern of poor judgment and lack of insight into her issues, evidenced by her continued drug use and non-compliance with services. After completing a bonding evaluation between Anna and her foster mother, R.S., Dr. Kirschner found Anna had a strong parent-child bond with R.S. and would suffer serious and enduring psychological issues if the relationship were severed. R.S. testified she wanted to adopt Anna if defendant's parental rights were terminated.
Johnson testified that the Division explored the possibility of placing Anna with relatives. The Division ruled out defendant's father, K.A., because he was already taking care of I.Y.A. and Z.N.M. and could not care for a third child. K.A. confirmed this was the case in his testimony.
Defendant testified that, if Anna could not be returned to her, she wanted the child to live with S.J. Johnson testified the Division looked into placing Anna with S.J. in 2009, but her apartment was not appropriate. Thereafter, S.J. moved to North Carolina. In August 2010, S.J. again expressed an interest in caring for the child. The Division initiated an interstate evaluation, but S.J. never completed it. At the time of the trial, S.J. continued to express an interest in caring for Anna, but admitted she had rarely seen the child since she had moved to North Carolina, even though the Division had repeatedly attempted to arrange visits for her. S.J. also indicated she was planning to leave North Carolina soon to live in either New Jersey or Pennsylvania. Her plans were not clear.
After conducting a bonding evaluation, Dr. Klein concluded that Anna was positively bonded to her foster mother. He opined that it would take up to six months of "frequent" visitation between S.J. and the child for a bond to be formed that would allow placement with S.J. Nevertheless, Dr. Klein opined that, regardless of the harm that Anna would suffer from breaking her bond with R.S., a child should be placed with a relative.
In a written decision and order issued on October 19, 2011, Judge Leath found defendant's persistent substance abuse and lack of commitment to sobriety demonstrated, by clear and convincing evidence, that Anna's safety, health and development had been endangered by defendant and would continue to be at risk. Likewise, the judge found defendant was unable to eliminate the harm to Anna. The child had formed a strong bond with her foster mother, with whom she had resided since she was fifteen months old.
Judge Leath was satisfied there were no alternatives to termination and outlined the efforts the Division took to assist defendant in correcting the circumstances that led to Anna's removal, including substance abuse counseling programs, parenting classes, and psychological and bonding evaluations. Finally, the judge found termination would not do more harm than good. Defendant did not file an appeal of the termination order until February 10, 2012, after R.S. had adopted Anna. By order of March 12, 2012, we granted defendant's motion to file the appeal as within time.
Anna's father, M.B., defaulted and his parental rights were also terminated on October 19, 2011.
II.
On appeal, defendant raises the following points for our consideration:
POINT I
SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE BEST INTERESTS TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) [DEFENDANT] IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE PRESENTED DID NOT SUPPORT A FINDING THAT [ANNA'S] SAFETY, HEALTH OR DEVELOPMENT WAS OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
(B) THE COURT'S FINDINGS THAT [DEFENDANT] WAS UNABLE TO OR UNWILLING TO ELIMINATE THE HARM FACING THE CHILD AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS.
(C) DYFS FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT FAILED TO PROVIDE SERVICES THAT WERE REASONABLE UNDER ALL THE CIRCUMSTANCES AND CEASED PROVIDING FULL SERVICES PRIOR TO ISSUANCE OF THE NO REASONABLE EFFORTS ORDER.
(D) [DEFENDANT] IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
POINT II
THE JUDGE ERRED BY ALLOWING IMPROPER EVIDENCE INTO THE RECORD AT THE TERMINATION HEARING.
The law governing our analysis is well-known. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(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 standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12).
When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted).
Applying this standard, we discern ample evidence in the record to support Judge Leath's conclusion that Anna's best interests required termination of defendant's parental rights. We add the following comments.
The appropriate test under the first prong is not whether defendant has actually harmed Anna, as defendant would urge, but "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Causing harm and the inability to eliminate it are related factors. Thus, the evidence that supports one, informs, and may support the other. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Defendant suffers from drug addiction, which adversely affects her ability to parent. There is no evidence to demonstrate that she has the capacity to eliminate the risk of future harm. To the contrary, defendant tested positive for marijuana at Anna's birth and on numerous subsequent drug screens. Defendant failed to complete any treatment programs, missed numerous appointments, and had no demonstrated desire to change. Therefore, the record fully supports Judge Leath's finding that the Division satisfied its burden of proof as to the first prong of the best interests test.
This same evidence also clearly and convincingly demonstrated defendant's inability to prevent harm to Anna's physical or emotional health, thereby supporting the judge's findings under the second prong. See K.H.O., supra, 161 N.J. at 353 (stating that "indications of parental dereliction and irresponsibility, such as a parent's continued or recurrent drug abuse" may be probative of the second prong). Because defendant is unable to ameliorate the harm in this situation, most notably her drug use, and Anna would suffer substantially from the disruption of the strong and loving relationship she enjoyed with her foster mother, the requisite proofs to establish the second prong were satisfied.
Turning to the third prong, the Division provided numerous substance abuse evaluations and treatment, parenting classes, and visitation, but defendant continued to disregard them. She failed four times to complete a psychological and bonding evaluation. A parent's continued refusal to engage in services suggests that the Division's efforts to provide services are no longer reasonable. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986). Defendant is clearly unwilling to participate in services, as evidenced by the number of appointments she missed. While she attended some services, she did not commit to them, as she left or was terminated from programs due to noncompliance. To continue to offer services under these circumstances would only prolong the inevitable. Ibid. The Division thus provided reasonable services to defendant, who failed to take advantage of them.
The Division also thoroughly explored the possibility of placing Anna with a relative. Contrary to defendant's contention, there is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003). Defendant's father, K.A., had already stepped forward to care for her two sons. He was unable to take on the further responsibility of caring for Anna. While S.J. expressed an interest in taking custody of the child, she moved to North Carolina and then did not complete the process necessary to become an approved foster parent. She also testified she planned to leave North Carolina in the near future and, therefore, had no stable residence at the time of the trial. She had no bond with Anna and had rarely even seen the child in the two years preceding the trial. Thus, there was ample evidence in the record to support the judge's finding that the Division met this prong by clear and convincing evidence.
Finally, the fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).
Judge Leath accepted Dr. Kirschner's testimony and opinion that Anna would suffer significant and enduring harm if her relationship with her foster mother were severed, because, at the time of the trial, she had lived with her since she was fifteen months old. On the other hand, the record was devoid of any evidence of a bond between defendant and Anna. Defendant failed to complete four bonding evaluations and failed to take advantage of the services provided to her by the Division.
Therefore, the only harm that would befall Anna from termination of parental rights is harm which naturally inures from severing a relationship with a biological parent, and that harm is insufficient to defeat termination of the parent's rights. See K.H.O., supra, 161 N.J. at 357-58. "[W]here, [as 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, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4) that termination of parental rights will not do more harm than good to the child." Id. at 363. Thus, the record fully supports Judge Leath's finding that the Division met this prong of the statutory test.
In her final point, defendant argues the judge erred in overruling her objection to the admission in evidence of a screening summary and an investigation summary, both completed shortly after Anna's birth. Defendant objected to the documents because the allegations of abuse that were raised at that time were deemed "unfounded" by the Division.
Evidentiary rulings are reviewed under an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010). We perceive no abuse of discretion here. The two documents were introduced to provide background information concerning the family. More importantly, neither of the documents formed the basis for any adverse finding against defendant. Therefore, her contention lacks merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION