Opinion
DOCKET NO. A-1395-13T4
12-11-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.E.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.M.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nancy Andre, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.M.S. (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS Before Judgaes Lihotz and Rothstadt. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-151-13. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nancy Andre, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.M.S. (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant M.E.S. (Murray), appeals from the Family Part's October 25, 2013 guardianship judgment terminating his parental rights to his fourteen-month-old daughter, K.M.S. (Kate). Kate's mother, R.G. (Rachel), did not appear during the guardianship trial and her parental rights were also terminated in the same judgment, which she has not appealed.
We have fictionalized the names of the parties.
Kate was born "medically fragile" due to Rachel's drug use during pregnancy. She suffers from and requires special care for problems caused by intrauterine drug exposure, including seizures, muscular hypertonus, torticollis and respiratory problems.
Muscular hypertonus refers to "having greater than normal tension or relaxation; colloq[uially] stiff." Dictionary of Medical Terms 274 (4th ed. 2000). Torticollis is an "abnormal condition in which the head leans to one side because of contraction of the neck muscles on that side; it may be congenital or result from injury. Treatment depends on the cause and severity of the condition; it may include immobilization, pain relievers (if the muscle spasm produces severe pain), and surgical intervention." Id. at 558.
Murray contends his parental rights should not have been terminated because the Division failed to prove each of the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Division and Kate's Law Guardian disagree and urge us to affirm the court's judgment. Having considered the record in light of the parties' contentions and applicable legal standards, we affirm.
I.
The Division was first involved with Rachel in February 2011 and subsequently was awarded custody of her two older children with a different father. It became involved with Kate when it received a referral from the hospital shortly after her birth.
Kate was born prematurely to Rachel and Murray on August 6, 2012. The couple had been together until shortly before Kate's birth. They separated after at least one alleged incident of domestic violence as reported by Rachel. However, by July 2012, Rachel dismissed her domestic violence complaint and proposed Murray or his mother be granted custody of Kate. When Kate was born, however, Murray's whereabouts were unknown and his mother never expressed interest in assuming care and custody of Kate.
On August 10, 2012, the hospital reported to the Division Kate's meconium tested positive for cocaine, marijuana and opiates. The same day, the Division conducted a "Dodd" removal of Kate from Rachel's care. The Division placed Kate with a resource parent who did not wish to adopt her. The Division considered placing Kate with Murray's cousin but ruled her unsuitable because of her criminal history. A maternal cousin was also ruled out because she was charged with possession of marijuana and lived with a relative who had been substantiated for abuse.
"'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. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (2010)).
On August 14, 2012, the Division filed a verified child abuse/neglect complaint seeking custody of Kate. On the same date, Judge Angelo DiCamillo held a Dodd hearing and signed an order to show cause granting the Division custody of Kate and requiring supervision of her parents' weekly visitations.
Murray appeared for the Dodd hearing by phone. At the hearing, Murray said he was currently working in Virginia. Judge DiCamillo told Murray to contact the Division when he returned to New Jersey and to attend the next court hearing. Despite those instructions, Murray never contacted the Division, which was unable to reach him after August 14, 2012 because his telephone was disconnected. Murray did not appear at three subsequent hearings. The Division unsuccessfully attempted to locate Murray. The Division identified an address for Murray in Magnolia but no one answered the door when a caseworker went to the address. In September 2012, the Division served Murray's mother with a copy of the Title 9 complaint and in February 2013, it served her with the guardianship complaint. Murray never contacted the Division and efforts to locate him between August 2012 and June 2013 were unsuccessful.
The complaint alleging abuse and neglect was filed pursuant to N.J.S.A. 9:6-8.30.
The complaint was filed pursuant to N.J.S.A. 30:4C-15(c) seeking the termination of Murray's and Rachel's parental rights.
Following a December 13, 2012 permanency hearing at which Judge DiCamillo signed an order approving the Division's permanency plan to terminate Murray's and Rachel's parental rights, as they "failed to complete court ordered services such as substance abuse treatment and mental health counseling." Neither parent appeared at this hearing. The Division filed its complaint for guardianship on January 25, 2013.
On June 20, 2013, while Rachel's whereabouts were unknown, Murray appeared for a case management conference to contest the termination of his parental rights. He later requested a paternity test and expressed his intention to raise Kate if he was her father. By July 30, 2013, the Division learned the test results established Murray's paternity.
On August 2, 2013, the Division placed Kate with a non-relative resource parent who was interested in adoption. Murray was not informed Kate was moved to a new home. Her new resource mother was the daughter of Rachel's other children's resource mother. The Division worker reported the first time Kate met her resource mother they developed a rapport. In addition, the resource mother took Kate to spend time with her half-brothers and reported "[t]he visit went well and the boys [were] really excited to spend time with their sister."
As noted, the August 14, 2012 (Dodd) order granted Murray weekly supervised visitation with Kate. However he did not express an interest in visiting Kate for more than one year, when his paternity was established. A Division worker discussed Murray's visits with Kate, which commenced September 23, 2013. The Division also scheduled a psychological and bonding evaluation. Murray failed to appear for the visit and evaluations.
The evaluations were re-scheduled for October 1, 2013 with Ronald S. Gruen, Ed.D. Dr. Gruen "received very little information" about Murray before the evaluation but noted this was his first visit with his one-year-old daughter since she was born. Dr. Gruen also reported Murray had not been available for services, "ha[d] not called to ask questions about his child or to set up visitation."
Murray was forthcoming and told Dr. Gruen he "ha[d] no current residence and lives day-to-day from house-to-house." He also admitted he was struggling financially and had been unemployed for the last five months. Murray said he has three other children whom he sees approximately once per month and for whom he claimed he pays child support. In addition, he admitted to using marijuana on a recreational basis, especially when he was stressed. He also acknowledged his criminal record for drug possession and sales, for which he was incarcerated for three years.
Murray said he was involved in a relationship with Rachel for over two years, acknowledged he got her pregnant and then found out she was cheating on him. As a result, he was not sure the baby was his. Rachel and Murray reunited two and one-half months before Kate was born, but he claimed she disappeared for five to six months after Kate's birth. At that time, he did not yet have a paternity test and Dr. Gruen speculated "he was hoping that 'no news was good news.'" Less than three weeks before Kate's birth, Rachel told a Division worker she planned on giving custody to Murray and his mother but Murray disappeared.
When Murray eventually learned he was Kate's father, Murray said he was overjoyed and "very eager to parent her." According to Dr. Gruen, he said he needed a few months to "'get his life together'" in order to find stable housing and employment, although he admitted it was a challenge because he was a convicted felon and lacked job skills.
Dr. Gruen observed Murray
is not stable financially or emotionally. Further, he has never shown any interest in his daughter until recently. He also does not appreciate [his daughter's] special needs and what is involved in raising a child. He tries mightily to act like he is interested in parenting, but I see this as a face-saving gesture.Dr. Gruen administered several psychological tests to assess Murray's social/emotional functioning as it relates to parenting. From the test results he concluded:
Further, [Murray] impressed me as self-absorbed and primarily interested in doing what looks good and what meets his needs at the moment. He does not seem disciplined and dutiful. He does not have the requisite qualities at this point to parent a one-year-old, special needs child.
[Murray] presented as an anxious, paranoid individual who lacks emotional resources despite his bravado. He does not show a
strong desire to emotionally connect with others. He tries to act confident and at times buoyant, but this hides his inattention and resistance. Denial and bravado are his significant defenses.
On the test profile, he demonstrated significant narcissistic behaviors, thinking of his own needs before those of someone else. He is likely to brag and portray himself as a superior person. He is clever and manipulative. When his desires are thwarted, he can become negative, resentful, edgy, unpredictable and/or aggressive.
[Murray] can become easily upset when things do not go his way, especially if his carefully constructed social front is pierced or challenged. [Murray] is a marginally functioning individual and can barely take care of himself. He certainly cannot take care of a dependent child.
Dr. Gruen diagnosed Murray with paranoid disorder, generalized anxiety disorder, bipolar disorder and narcissistic personality disorder. Murray did not report a history of mental illness or prior therapy, rather he believed he was fine, did not feel a need for services and was "ready to take it on" and assume Kate's parenting. Dr. Gruen concluded:
Results of the Psychological Evaluation indicate that [Murray] is not capable of parenting his child at this time by virtue of his character and personality deficiencies. I do not see him as one who is inclined to stay home and meet the needs of his daughter on a daily basis. He is impatient and unpredictable. He would like to put the responsibility for child care on someone else, and at the same time bask in
the glory of calling himself the child's father.
He also is unable to parent because of his lack of a stable home and his unemployment. He [cannot] raise a child, especially a special needs child, while jumping from one home to another on a daily basis and/or frequent basis. His pursuit of custody is more to satisfy his own narcissism than for the benefit of the child.
Dr. Gruen next conducted a bonding evaluation of Murray with Kate. Dr. Gruen reported Kate cried when Murray tried to hold her. "The crying continued basically for one hour with just a few short breaks when she exhausted herself. He tried to console his daughter, but she did not recognize him and did not settle down." Dr. Gruen noted Kate did not cry when she was held by him and a Division worker, but continued to cry when Murray held her. Murray was "gentle and kind" with his daughter but ended the session early because she continued to cry and "he did not want to see her upset." Dr. Gruen noted, "the session ended just as it started, with the child crying and being uncomfortable around a stranger." Since this was the first time they met, there was no psychological bond, which led Dr. Gruen to conclude Kate "would not suffer any emotional harm if the rights of the father were terminated."
No bonding evaluation was conducted with Kate's resource mother because Kate had just been placed in her home. However, Dr. Gruen concluded from the case worker's reports "the foster mother was meeting the child's needs and that the child was dependent upon or looked to the foster mother as a method of meeting her own needs."
Dr. Gruen later testified at trial. He stated Murray's ability to parent Kate would be impaired because his "first impulse is to do what is best for him, and this child in particular, because of her special needs, requires a great need of individual attention." He also testified he thinks Kate would be at risk if she were placed in her father's care:
Number one, I do not see him as the dutiful, attentive father that this child needs because I think that he has other priorities.Murray's parenting deficits required intensive therapy for at least one year, parenting skills, a psychiatric and substance abuse evaluation, and to care for Kate he needed a stable job and home. Dr. Gruen asserted delaying Kate's permanence would
And I also find that he would have to have a stable environment, and he'd have to be able to earn some money to support this child.
be difficult [for Kate] because the child would bond where she is and then if you take her away at that point, it would certainly be destabilizing to her, and since she has respiratory problems as it is, I certainly wouldn't want to run the risk that she would get asthma or have serious emotional reactions to removal.
Dr. Gruen also opined Murray could form a bond with his daughter "but he would have to really work at it." Dr. Gruen also stated Murray did not give an explanation as to why he was absent from his daughter's life from the time she was born until he came to court in June 2013.
Judge Linda Baxter conducted the guardianship trial from October 23-25, 2013. In addition to Dr. Gruen, three Division workers testified regarding Division efforts to locate Murray. Murray did not offer any evidence and did not have an expert testify to refute Dr. Gruen's testimony.
Judge Baxter addressed Murray's absence despite his awareness of Kate's birth. She found from the totality of the evidence Murray was the person who participated by telephone in the Dodd hearing on August 14, 2012, rejecting counsel's arguments to the contrary. Further, she cited Murray's comments to Dr. Gruen, acknowledging he "got [Rachel] pregnant" and knew the child had been born. Also, the guardianship complaint was given to his mother, "[who] said she had just spoken to her son two days [earlier] and she would be certain to give him the complaint." Finally, Judge Baxter said even after the paternity test established Murray was Kate's father at the end of July 2013, he made no effort to see his daughter before the psychological and bonding evaluation conducted on October 1, 2013. After concluding Murray was aware of Kate's birth she then proceeded to conduct a "best interest of the child" analysis, applying the "four prong test" defined in N.J.S.A. 30:4C-15.1(a).
Judge Baxter found the first prong, the harm requirement was satisfied by clear and convincing evidence because Murray knew Kate's mother had a "long standing drug problem," but remained content to leave his child in her care. The judge concluded Murray endangered his daughter's "health, safety and development by allowing her to potentially live with a drug abusing mother."Judge Baxter said a second way in which "he ha[d] endangered the child's health, safety and welfare was by failing to establish a secure home." The judge said a third way Murray had caused harm to his daughter resulted from his failure to treat his psychological disorders as diagnosed by Dr. Gruen, which could have an adverse impact on parenting capacity. Finally, the judge said Murray has harmed his child "because he defaulted in his responsibilities as a father. He has been absent from his daughter's life for her whole life, and unquestionably, the absence of a parent is a, per se, endangerment of the child's safety, health or development."
The judge next addressed the second prong and found Murray, who was thirty-eight-years-old, had no permanent employment and was "unlikely to have a secure steady source of income," which would allow him to secure housing. Judge Baxter also noted he needs at least a year of mental health treatment, but "the clock doesn't even start running on that year until he acknowledges that he needs help."
Analyzing the third prong Judge Baxter acknowledged the Division did not provide services because Murray was "missing," stating:
[H]e's had no phone number in which the Division could reach him, no address that he was living at where the Division could find him, but I find that even if the Division had found him and somehow maybe located him through his mother . . . it wouldn't have made a difference because he doesn't want services and says he doesn't need them. So therefore, although no services were actually offered to him, I find that that is not the fault of the Division; it is because [Murray] was basically missing, and he wouldn't have availed himself of services even if those services had been offered.In addition, alternatives to termination were considered; however, the Division determined placement with the suggested relatives was unsatisfactory. Thus, the judge concluded the Division met the third prong.
Finally, Judge Baxter analyzed prong four and whether terminating Murray's parental rights would cause more harm than good to Kate. The judge found Murray "has no relationship with his daughter, and therefore, terminating his parental rights would cause her absolutely no harm." Even though no bonding evaluation between Kate and her foster mother was conducted because "of the short period of time the child ha[d] been there," Judge Baxter noted "this foster mother is strongly committed to adopting [Kate]," noting she had:
obtained licensing for her home so that she's in an approved foster placement. The child is well adjusted and happy there. This foster mother has taken [Kate] to all of [her] . . . medical appointments, and we have at least the foundations of a stronger and enduring bond.Judge Baxter then found "it would be harmful to this child to terminate the bond that she presently has with her foster mother." Therefore, Judge Baxter found "terminating the child's relationship with her foster mother would cause this child significant harm."
On October 25, 2013, Judge Baxter found the Division's evidence clearly and convincingly proved all four prongs; she ordered the termination of Murray's parental rights and awarded the Division guardianship for purposes of securing Kate's adoption. Murray's appeal followed.
II.
A.
Prior to addressing Murray's contention that the Division failed to produce sufficient evidence to clearly and convincingly prove the four prongs of the best interest of the child test, we set forth the principles guiding our review. The scope of appellate review is limited: the court must defer to the trial judge's findings if they are supported by substantial, credible evidence, though legal conclusions are always subject to review. In re Adoption of Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). Particular deference is afforded to a trial judge's factfinding "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). This deference applies unless the trial court's findings are "so wide of the mark that a mistake must have been made." Div. of Youth & Family Servs. v. M.M.,189 N.J. 261, 279 (2007) (citations and internal quotation marks omitted).
Termination of "parental rights is a difficult and intentionally rigorous" process, subject to a "heightened burden of proof." Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010). Therefore, the Division must proffer "clear and convincing evidence [] the four statutory criteria are satisfied." M.M., supra, 189 N.J. at 280. Clear and convincing evidence "should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In re Perskie, 207 N.J. 275, 290 (2011) (citations and internal quotation marks omitted).
The standards for terminating parental rights are in keeping with public policy and constitutional doctrine, In re Guardianship of J.C., 129 N.J. 1, 9 (1992), as parents have a fundamental, constitutionally-protected interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L. Ed. 2d 599 (1982). However, these constitutional protections may be tempered by the State's parens patriae responsibility to prevent harm to children. J.C., supra, 129 N.J. at 10. As such, the statutory "best interests" test aims to achieve an appropriate balance between parental rights and the State's duty to children. The State may terminate parental rights only when
(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).]
The requirements should not be considered separately, but should form a composite picture of what is in the best interests of the child. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). Applying the four-part test is "extremely fact sensitive and require[s] particularized evidence that addresses the specific circumstances of the individual case." Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citations and internal quotation marks omitted), certif. denied, 190 N.J. 257 (2007).
Moreover, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." J.C., supra, 129 N.J. at 10. Therefore, parents in such proceedings should not be presumed unfit, and "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). However, the focus is on the child. Div. of Youth & Fam. Serv. v. C.S., 367 N.J. Super. 76, 111, 116 (App Div.) (holding the law requires an "expeditious, permanent placement to promote the child's well-being" instead of waiting for a birth parent "to correct conditions in anticipation of reuniting with the child"), certif. denied, 180 N.J. 456 (2004).
Applying these principles, our review of the record satisfies us the trial court's finding the Division clearly and convincingly proved all four prongs of the best interests test was supported by substantial credible evidence.
B.
As to the first prong, Murray argues he never harmed his daughter or placed her in harm's way especially because he never met her until his bonding evaluation with Dr. Gruen. He then disputed each of the specific ways Judge Baxter concluded prong one was met.
Under the first prong, the Division must show harm which "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Harm to the child in the future and whether the parents are able to eliminate the harm is also considered. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 ( 2002). The Division is not, therefore, required to show that a parent actually harmed their child. The potential for future harm is sufficient. Ibid. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
In addition, the harm does not have to be physical in nature. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." Id. at 44.
Murray disputes he caused harm to Kate by being absent from her life as found by Judge Baxter. He claims "[t]here is no evidence that he knew that the baby had been born" prior to appearing in court in June 2013, four months before the guardianship trial, when Kate was ten-months-old. Specifically, Murray disputes he appeared by phone for the August 14, 2012 Dodd hearing, in which both parents were granted weekly supervised visitation. This claim attacks the judge's factual findings and indirectly raises a due process challenge, attacking the fundamental fairness of the proceeding.
In reviewing this issue, Judge Baxter initially questioned whether he appeared by phone. However, after considering all of the evidence, she concluded, "I find specifically that [Murray] was a participant by telephone in the Dodd hearing on August 14, 2012, which means that he knew from the get-go that his daughter had been born or that he had had a child and that it was a girl." The judge found it was improbable that Rachel made up a scheme to have someone else pose as Murray. Further, she relied upon Murray's admissions to Dr. Gruen about knowing Rachel was pregnant and had given birth. Significantly, there was no evidence to support Murray's claim of fraud by someone pretending to be him and Murray never testified or certified he did not appear by phone at the Dodd hearing. Thus, there was no evidence Murray was deprived of due process in these proceedings. Here, although there was no formal authentication of the male appearing telephonically at the Dodd hearing, the totality of the evidence in this record convincingly supported Judge Baxter's findings that Murray was on notice of Kate's birth and was given adequate opportunity to be heard on all issues.
Furthermore, assuming arguendo, Murray did not appear by phone during the Dodd hearing, credible evidence supporting that he knew his child was born was unrefuted. As Judge Baxter noted, Murray told Dr. Gruen he "got [Rachel] pregnant" and he knew the child had been born. Despite that knowledge, he made no effort to see, care or provide for the child at any time. The first time he saw Kate was at the bonding evaluation almost fourteen months after her birth.
"[T]he attention and concern of a caring family is 'the most precious of all resources.'" D.M.H., supra, 161 N.J. at 379 (quoting Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "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. (citing K.H.O., supra, 161 N.J. at 352-54). For this reason, a parent who occasionally visits their child but does not provide any "paternal care, nurture or support" and demonstrates a "persistent failure to perform any parenting functions" for an extended period, causes "parental harm to [their] child arising out of the parental relationship and cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81. That harm, however, can be overcome if the parent is diligent in attending to the child's needs even if the parent has been absent for some period of time. See I.S., supra, 202 N.J. at 150-51 (reversing termination of a father's parental rights where, although he initially did not want custody of his child from an extramarital affair, he sought to provide alternate custodial arrangements and eventually took custody of his child himself after demonstrating an ability to provide care and support). "Something more" is needed beyond a delay in providing support in order to justify terminating parental rights. Id. at 171-72. For example, parental absence plus significant mental disturbances which adversely affect the ability to parent can endanger a child's safety, health or development and support a finding of harm under the first prong. See A.G., supra, 344 N.J. Super. at 436.
The facts in this case established the "something more" necessary to support Judge Baxter's conclusion Murray's absence caused his child harm and was likely to continue to do so in the future. First, Dr. Gruen's unrefuted testimony demonstrated Murray's inability to parent a child at the time of the trial and his likely inability to do so in the future. As Dr. Gruen pointed out, and as Judge Baxter found, even though Murray suffers from various psychological disorders, he believes that he is fine, ready to parent and does not need any services. Second, once his paternity was confirmed, Murray did not immediately become involved with the Division. He never made arrangements to visit Kate and failed to attend scheduled visitation. Third, Murray failed to provide any care, nurture or support for Kate and never demonstrated any ability to do so. Rather, the evidence established his unemployment and his consistent homelessness made it impossible for him to care for Kate. Murray acknowledged to Dr. Gruen he "has no current residence and lives day-to-day from house-to-house." Moreover, he left Kate in the care of Rachel who he knew to be a drug user.
The trial court's essential finding on the first prong was that Murray was unable to effectively parent Kate after being absent from her life since birth. As a result, Murray presented a clear and convincing risk of harm to Kate based on the above noted multiplicity of factors, including Murray's persistent history of unstable living arrangements, untreated mental illness, lack of employment, and unrefuted psychological evaluations establishing his inability to parent. There was sufficient, credible evidence in the record to support the judge's conclusion the first prong was met because Kate's safety, health and development would be endangered by placement with Murray because of all of those issues.
C.
Murray argues the Division failed to satisfy the second prong as even its expert acknowledged he could parent if provided services for at least a year. Murray also contends there is no evidence in the record he will not be able to obtain steady employment or he did not believe he required services. He argues this is speculation and "presumptions have no place in a termination analysis." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,608 (2007).
The second prong requires a showing of an unwillingness or inability to eliminate the harm facing the child or to provide a safe and stable home for the child and delay of permanent placement will add to the harm. See K.H.O., supra, 161 N.J. at 352 (citations and internal quotation marks omitted). The two components of harm embodied in the first and second prongs are related, and "evidence that supports one informs and may support the other . . . . " D.M.H., supra, 161 N.J. at 379. As with the first prong, we are satisfied the evidence overwhelmingly supports the court's finding Murray unable to care for Kate due to the multiplicity of factors we have described and based on the psychological testing.
To the extent Murray argued Kate should have waited in foster care while he pursued treatment and services, his argument ignores the focus of our courts' concern. Our concern is based on "[t]he strong public policy of New Jersey [that] favors permanency of child placement[,]" C.S. supra, 367 N.J. Super. at 116, and the principal a child should not have to wait for a parent to complete good faith efforts to be capable of parenting. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Id. at 111.
The law requires children obtain permanency and to limit the amount of time afforded parents to correct conditions that preclude reunification. Id. at 111, 116. For this reason, the law "has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 484 (App. Div. 2012). "'Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law.'" Ibid. (quoting A.G., supra, 344 N.J. Super. at 438). A child's need for permanency and the legal policy to provide it expeditiously can only yield to a parent who is making diligent efforts to be reunited with a child, but who needs a reasonable period of time to complete those efforts. See F.M., supra, 375 N.J. Super. at 258.
Murray never attempted to make any efforts. He had no housing arrangements, child care plans or even steady employment. He also did not have experience successfully raising children since he only saw his other children approximately once per month. Murray believed he acknowledged his problems by telling Dr. Gruen he needed some time "to get his life together" before he could be capable of raising his daughter. However, Dr. Gruen testified Murray never actually acknowledged the issues he needed to address. As Dr. Gruen stated,
he has to accept the fact that he has deficiencies and that he needs to learn to do a better job of taking care of other people. That would be his primary responsibility if he's going to parent a one-year old with special needs.Even if Murray accepted his deficiencies and sought treatment for at least a year, Dr. Gruen believed it would be destabilizing and detrimental to Kate's health. Furthermore, there was no guarantee or even a probability a year would be a reasonable amount of time for Kate to wait in limbo while Murray completed services.
And, I don't think he does that.
He came in, sort of, like Gang Busters, telling me that, you know, he's fine, he can do the job. He's thrilled about it. He wants his child.
But, when we really came down to discussing his readiness to do it, it's obviously apparent that he's not ready.
And then, only towards the end of the evaluation did he say to me, you know, "I need a few months to get it together."
When he came in, he was ready to like that. Immediately.
We are therefore satisfied Judge Baxter relied on substantial credible evidence in finding the Division satisfied the second prong as Murray would not be able to parent and provide a stable home for Kate and the delay in securing permanency would only add to the harm. N.J.S.A. 30:4C-15.1(a)(2).
D.
Murray next argues the Division's proofs regarding the third prong "fell far short of th[e] reasonable efforts requirement." We disagree.
The third prong requires the Division to undertake "reasonable efforts" to provide necessary services to help the parent to correct the circumstances which led to the removal, and requires the court to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3).
Title 30 defines "reasonable efforts" as
attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
[N .J.S.A. 30:4C-15.1(c).]
"The reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435. "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for his [or her] children is not determinative of the sufficiency of [the Division's] efforts at family reunification." D.M.H., supra, 161 N.J. at 393. The efforts must be assessed on an individualized basis based on the circumstances. Ibid. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.
There are, however, certain factors which can suggest additional Division efforts to reunite a family are no longer reasonable. A.W., supra, 103 N.J. at 610. Such factors include parents who do not engage in services or parents with mental illness who cannot benefit from services. Ibid.
Judge Baxter found services were not provided to Murray because he was "missing." We defer to Judge Baxter's finding since there is substantial and credible evidence the Division was available to provide reasonable services to Murray under the circumstances but he never sought to avail himself of any assistance.
Murray's argument regarding the Division's proofs ignores the fact he never contacted the Division after Kate was born, he did not express any interest in caring for her until after the paternity test results, and even then, he did not believe he needed any services, telling Dr. Gruen he was fine and ready to parent but just needed a few months to make arrangements. Under these circumstances the Division was not obligated to do more. Despite his attempt to blame the Division for not trying harder to locate him and provide services, it was Murray who failed to seek contact with his daughter or services necessary to provide for her care.
We are equally satisfied the evidence supported Judge Baxter's finding as to the Division's efforts to find alternative relative placements for Kate despite Murray's argument to the contrary.
"[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement." Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003). However, "the Division is obligated to initiate a search for relatives who may be willing and able to provide the care and support required by the child, N.J.S.A. 30:4C-12.1a, and the Division's policy is to place, whenever possible, children with relatives." Id. at 529 (citations and internal quotation marks omitted).
The Division satisfied its obligation in this case. The first relative who was ruled out was a maternal cousin who was initially investigated in 2011 for the placement of Kate's half-brothers (Rachel's first two children). She was ruled out in part because of her own charge of possession of marijuana in 2000. In addition, the Division letter said it would not be placing the children with the cousin because the cousin's mother, who lived with her, had been substantiated for child abuse or neglect in 1992. Murray argues the Division never re-evaluated the cousin to see if she would be an acceptable placement if the cousin's mother no longer resided with the cousin. However, the Division had no reason to perform a second evaluation.
The second relative, another cousin, was ruled out because of her incarceration for stabbing a boyfriend, but Murray argues the Division did not know if she was ever convicted of a crime. Murray contends the trial court should not have accepted the Division's permanency decision but should have held hearings, reviewed competing plans and not presumed the Division's plan is better than alternatives, when determining a child's placement. In re C.R., 364 N.J. Super. 263, 279 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004).
Judge Baxter found the Division fulfilled its obligation to search for relatives. The Division couldn't consider Murray's mother as a placement because she never demonstrated any interest in caring for Kate even though the Division was in contact with her on numerous occasions regarding Murray's whereabouts. In addition, the Division ruled out other relatives based on criminal charges. Overall, we are satisfied Judge Baxter correctly found the Division proved it met its burden for considering all alternatives.
E.
Finally, Murray argues the Division's proofs failed to satisfy the fourth prong because they failed to establish that termination would not do more harm than good. He argues the Division "was apparently aware that the child has not bonded with the foster parent" which is why the Division did not perform a bonding evaluation with the foster parent. The Division contends even though Kate was placed with the foster mother for a short time, she had been involved with Kate "for quite some time" since her mother was the foster mother of Kate's half-brothers. The Division claims the foster mother plans to adopt Kate and to promote her relationship with her brothers. Despite the absence of a foster parent bonding evaluation, the Division and Law Guardian argue if the two relationships are compared, termination of Murray's parental rights will not do more harm than good.
Generally, there is an inherent risk of harm to a child associated with termination of parental rights. K.H.O., supra, 161 N.J. at 355. Therefore, under this prong, the Division need not prove that the child will suffer no harm, but rather the issue is whether, after considering both 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." Ibid. Thus, the fourth prong is "related to the first and second" prongs because they all require a consideration of harm to the child caused by the parent-child relationship. D.M.H., supra, 161 N.J. at 384.
This fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. The question is "whether a child's interest will be best served by completely terminating the child's relationship with that parent." Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
Analyzing potential termination requires a balancing of the two relationships between terminating the child's ties with the parent or disruption of ties with the resource family. J.C., supra, 129 N.J. at 25. The main question is 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." K.H.O., supra ,161 N.J. at 355.
There is usually a need for "expert evaluations and testimony with respect to natural and resource families." Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). As we have also previously observed, comparative bonding evaluations are very important:
[W]e can envision very few scenarios in which comparative evaluations would not be required. Indeed . . . it is of great significance in evaluating comparative harm under the fourth prong in showing that termination of parental rights likely will not do more harm than good and in sustaining [the Division's] burden of proof.
[Ibid. (citations and internal quotation marks omitted).]
An exception to this requirement exists where, as here, a child would be harmed by losing her relationship with her foster parent, which plainly would require comparative evaluations. See J.C., supra, 129 N.J. at 18. Rather, the harm posed is a parent's unfitness, irrespective of any attachment the child has to her foster parent.
Indeed, our courts have long recognized that termination may be warranted where no immediate prospect for adoption exists and, consequently, where no comparative evaluations with prospective adoptive parents could even be available. A.W., supra, 103 N.J. at 611. This can occur in circumstances where the search for an appropriate home cannot be undertaken until after termination.
This case presents another one of those rare exceptions. We recognize there was no competing evaluation with the foster parent conducted in this case because the child was placed with the foster parent for too short of a time and, as Murray never had any prior contact with Kate, he had no bond with her either. Under these circumstances, we are satisfied there could be no harm, as testified to by Dr. Gruen, by terminating her relationship with Murray. Further, we agree there was no evidence the maintaining of Murray's parental rights would provide any "good" at all to Kate. It was not in Kate's best interest to wait until Murray got his life together one day in the indeterminate future. In contrast, the evidence established terminating Kate's relationship with her resource mother could cause harm to Kate if it was severed in the future after a year or more of nurturing in what is a very positive environment. As a result, there was substantial and credible evidence prong four was met since terminating Murray's parental rights will not do more harm to Kate than good. N.J.S.A. 30:4C-15.1(a)(4).
In sum, Judge Baxter properly found the Division proved all the prongs by clear and convincing evidence. To the extent we have not directly addressed any of Murray's additional arguments to the contrary, we deem them to have no merit. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION