Opinion
DOCKET NO. A-1752-13T3
12-02-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.J., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.Y. and R.T., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory K. Byrd, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0040-13. Joseph E. Krakora, Public Defender, attorney for appellant (Gregory K. Byrd, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant C.J. appeals from a November 22, 2013 Family Part order terminating his parental rights and entering a judgment awarding guardianship to plaintiff New Jersey Division of Child Protection and Permanency (the Division) to secure the adoption of his biological child, A.Y. On appeal, C.J. challenges the sufficiency of the Division's evidence, arguing the proofs were neither clear nor convincing and did not support the order terminating his parental rights. More specifically, he maintains A.Y. developed a bond with him and he was given insufficient time to obtain employment, adequate housing and become drug free to allow reunification. We disagree and affirm.
The judgment also terminated the parental rights of A.Y.'s mother, both as to A.Y. and her half-sibling R.T. Issues surrounding these aspects of the judgment are not the subject of this appeal.
The law guiding our review is well-established. Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972). Parental rights, while constitutionally protected, are not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). However, "experience and reality may rebut what the law accepts as a starting point[.]" Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. Some parents may act against the interests of their children and the right of parents to be free from governmental intrusion must yield when parents have forsaken their parental duties and the best interests of children require they be afforded a stable, permanent home. In re Guardianship of P.P., 180 N.J. 494, 505 (2004).
The Legislature has recognized this balance in its dual role of preserving families and assuring the welfare of children free of emotional and physical harm. Accordingly, "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). When a child's biological parents resist termination of parental rights, it is the court's function to decide whether the parents can raise their children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents can "cease causing their child harm[,]" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.
When the Division seeks guardianship and termination of parental rights, a trial court's examination focuses on what course serves the "best interests" of the child. K.H.O., supra, 161 N.J. at 343. The State bears the burden of proving each element of the "best interests of the child" test, codified at N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence before parental rights can be terminated. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). The four-prong test requires the Division to establish:
(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; andThe four criteria "'are not discreet and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007). The considerations involved are extremely fact sensitive and require particularized evidence addressing the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 348. We turn to the evidence submitted at trial to determine whether the Division's proofs satisfied these standards.
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
The Division became involved with the family when A.Y.'s sister, C.Y., was rushed to a hospital emergency room and pronounced dead. The two children were living with their mother and her paramour, who both were charged in C.Y.'s death. A.Y. was removed from the home and placed with a resource family.
The medical records show C.Y.'s face, back, and legs were covered with bruises in different stages of healing and her face had an apparent burn mark. These injuries lead to C.Y.'s death being ruled a homicide.
As noted, R.T., A.Y.'s half-sibling, born after A.Y., was removed. He was also placed in the Division's custody, subject to a determination of guardianship.
In May 2011, C.J. was contacted by the Division, which determined his extensive drug abuse, criminal history (including offenses such as assault, drug possession, harassment, stalking, criminal restraint, and kidnapping), inadequate housing, unemployment, and a complete lack of involvement in A.Y.'s life, precluded his consideration as an immediate viable placement option. C.J. agreed to accept services designed to achieve reunification and, within a month, the Division developed a reunification plan for C.J. and A.Y. Weekly supervised visitation commenced and psychological evaluation and substance abuse assessment and treatment were scheduled. The Division informed C.J. it was necessary he find independent housing and seek employment.
Initially C.J. participated in visitation, which began on May 11, 2011. Although the visits went well, C.J. never requested additional visitation time with A.Y. In February 2012, C.J.'s visits became less regular and he either missed or arrived late to many sessions. On September 24, 2012, C.J. informed the Division he no longer wished to travel to Union to attend visits. The Division offered transportation, which C.J. declined. Consequently, he did not attend visitations. The Division transferred visits to Tri-Cities Corp., where C.J. attended some visits, but missed visits on October 2 and October 9, 2012. From July 2013 through September 2013, C.J. attended only two visits.
C.J. participated in the scheduled psychological examination, during which he admitted he had little contact with A.Y. and "didn't know anything about her[.]" He related he once saw C.Y. with a mark on her face, which he knew was caused by the mother's paramour, but did nothing, as he believed the child had a "good mother."
After being informed of the need to obtain housing and a job, C.J. applied for public assistance. However, during a conference more than one year later in June 2012, he admitted he remained unemployed and lived in his mother's home with eight others. The Division again worked with C.J. to resolve these issues and also scheduled his participation in parenting classes, which he completed. When trial commenced in November 2013, C.J.'s employment and residence status had not improved.
Substance abuse was also an impediment to reunification. C.J. admitted he first started using marijuana and "pills" when he was sixteen-years-old. His drug use continued while this matter was pending. On November 15, 2012, he tested positive for Percocet and on January 15, 2013, his drug treatment was extended an additional month because he was noncompliant with program requirements. By March 2013, C.J. completed drug treatment at the Airmid Counseling Services Outpatient Program.
The Division also provided services to benefit A.Y. Psychological and medical assessments determined A.Y. likely suffered abuse and medical neglect in her home. A medical examination revealed the then four-year-old had two sets of healed fractures of her femur and ribs. She also suffered from osteopenia of her leg bones, resulting in an irregular gait and a limp. The child's statements further suggested she witnessed her sister being punched and her mother's paramour would "step on their backs."
Psychologically, A.Y. was affected by abuse, the loss of her sister, and removal from her mother. She suffered another loss when her resource mother unexpectedly passed away. A.Y. and her brother, R.T., who were placed together in the same home, moved to a new placement in October 2012. The children remained with this family who expressed interest in adopting them.
The Division evaluated potential relative resource placements for A.Y., considering C.J.'s mother and A.Y.'s maternal relatives. Unfortunately, all had prior histories with the Division. A maternal aunt from North Carolina was also considered, but she never met A.Y. and was ultimately ruled out because of the adverse effect on A.Y. from such a significant change in placement. Another viable candidate was G.Y., A.Y.'s maternal great-grandmother. During the course of the litigation, G.Y. and A.Y. engaged in visitation. Assessing G.Y., the Division initially determined her one-bedroom residence was inadequate for the child, causing G.Y. to be ruled out as a placement. Thereafter, G.Y. moved to a different apartment, which was still small, but adequate. In October 2012, following A.Y.'s resource mother's death, the Division re-opened consideration of G.Y. as a placement option; however, on February 19, 2013, G.Y. informed the Division she was no longer interested in caring for the child.
The guardianship trial was held over two days, on November 18 and 22, 2013, roughly two-and-one-half-years after the Division first contacted C.J. regarding care for A.Y. The Division presented testimony from its caseworkers, who discussed the Division's involvement with the family and efforts made to achieve reunification. The Division's expert, Denise Williams Johnson, Ph.D., testified regarding her conclusions following a psychological evaluation of C.J., a bonding evaluation between C.J. and A.Y. held on March 14, 2013, and a bonding evaluation between A.Y. and her resource parents held on June 13, 2013. Numerous documents also were admitted. The Law Guardian presented expert testimony from Elizabeth Smith, Psy.D., a forensic psychologist who evaluated A.Y. on July 23, 29, and October 14, 2013. C.J. did not present any evidence.
Dr. Williams Johnson found C.J. downplayed his substance abuse history, his earlier convictions for possession of controlled dangerous substances, and past instances of domestic violence, which she found reflected his inability to accept full responsibility for his substance abuse issues and criminal conduct. C.J. claimed he was unaware his continued use of pain medication and alcohol, while in substance abuse treatment, was inappropriate, which Dr. Williams Johnson noted showed C.J. was at risk for likely substance abuse relapse and recidivism.
Dr. Williams Johnson expressed a concern for C.J.'s unfamiliarity with A.Y., her prior living situation, as well as her current status with her resource family and his ignorance regarding the child's needs. She identified specific inappropriate statements C.J. made to A.Y., such as mentioning it was a burden to pay child support for her and mocking her for not knowing why he missed a recent visit. She found C.J. "to be a sensitive, suspicious, oppositional, self-serving man, with a potential for volatility, and perhaps some underlying sexual concerns." Also, she noted C.J.'s lack of awareness that his inconsistent visitation had a negative impact on A.Y. and his failure to obtain appropriate housing meant he was not in a position to take custody of the child. Dr. Williams Johnson acknowledged there were positive interactions between A.Y. and C.J. during the bonding evaluation, but she found their bond was insecure. She could not recommend C.J. was able to appropriately and safely parent A.Y.
Dr. Williams Johnson found A.Y. had a strong bond with her resource parents, noting she referred to them as "mommy and daddy" and actually expressed a preference to live with them. In contrast, A.Y. did not mention the possibility of living with her father, but liked visiting him.
Dr. Williams Johnson opined A.Y. would suffer some harm were her relationship with C.J. severed; however, any resultant harm would be mitigated by the strong, stable, relationship with her resource parents, who would ably address the loss. On the other hand, were A.Y.'s relationship with her resource parents disrupted, she would suffer enduring harm, which C.J. was ill-equipped to address.
After considering the results of her evaluation, Dr. Williams Johnson recommended termination of C.J.'s parental rights followed by A.Y.'s adoption by the resource family. On cross-examination, Dr. Williams Johnson provided one caveat to her conclusions, suggesting the objective test results she used were not necessarily normative to African-American culture, as would be applicable to C.J.
The Law Guardian called Dr. Smith to discuss her evaluation regarding the effect of moving A.Y. to live with a maternal relative in North Carolina. Dr. Smith identified traumas and losses A.Y. suffered during her young life, including domestic abuse in her home, malnutrition, possibly witnessing her sister's physical assault and death, separation from her mother, and the sudden death of her first resource mother. Because of these significant disruptions, A.Y. was extremely fragile emotionally and therefore had special needs, including post-traumatic stress disorder and attachment deficits. Dr. Smith asserted it was important A.Y. remain with her brother to provide a sense of belonging and maintained separating the two would cause additional loss and aggravate A.Y.'s emotional trauma.
Dr. Smith opined A.Y. required a stable placement and her removal from her current resource family would cause severe and enduring harm that could not be mitigated. A.Y.'s resource parents confirmed their desire to adopt A.Y. and R.T., giving both children stability and permanency. Accordingly, Dr. Smith opined it was not in A.Y.'s best interests to remove her from her placement.
At the close of evidence, the judge issued an oral opinion. He concluded it was in A.Y.'s best interest to terminate C.J.'s parental rights, finding the Division clearly and convincingly satisfied each prong of the best interests test. Regarding the first and second prong of the statutory test, the judge found C.J. "has had little or no contact with" A.Y. "prior to the Division['s] involvement." He never was a caretaker for A.Y., and had "never really done anything in the two and a half years that [A.Y.] has been in placement to make himself available." He noted although C.J.
wasn't the original perpetrator [of abuse], he was really not in [A.Y.'s] life to begin with. And clearly there's some issues there . . . from a psychological evaluation he clearly has issues. He has a long criminal history, a long drug history, he has not dealt with those issues appropriately. He still has many, many issues that need to be dealt with.The judge further found C.J. "neither has a home, stable environment, [n]or been really involved with the Division in any way to care or . . . offer himself as a plan [for the child's care]." The judge also noted, "[c]learly he has no concept of how to deal with [A.Y.], or a child . . . and certainly has no stability that would be comparable to the stability [A.Y.] will get in her present foster home." The judge concluded this conduct "continues to harm the child from that standpoint."
With regard to the third prong, the judge found the Division made reasonable efforts by offering numerous services to C.J., but he failed to take advantage of them or comply with the Division's recommendations, particularly as to assuring he remained drug-free and acquiring a satisfactory residence to raise the child. Discussing alternatives to termination of parental rights, the judge found the Division made reasonable efforts, having "evaluated numerous relatives involved in this family, the last of which is an aunt . . . in North Carolina which is really just too little too late at this particular point." Finally, regarding the fourth prong, the judge found, "if ever a child has been before me that needed permanency, stability and . . . a stable environment, it is clearly [A.Y.] . . . ." More specifically, the judge found:
[t]his case is so clear it begs for termination of parental rights, it begs for permanency. Clearly . . . the harm of terminating parental rights of . . . [C.J.] will have . . . little if any effect on [A.Y. and her brother]. If we terminated the rights of their current [resource] parents or move them back with any of the parents, that would be devastating. Particularly to [A.Y.]. They need to be together, they've gone through a lot together, they need to grow up together. [A.Y.] needs that as part of her stability
as well to have [R.T.], her brother, with her.Determining C.J. failed to be a viable caretaker for A.Y. because he was unable to provide A.Y. with a safe stable home in the foreseeable future, the judge concluded "clearly terminating parental rights . . . would not do more harm than good and is the only way that we can ensure that [A.Y.] does have a permanent stable environment . . . ."
A judgment of guardianship was entered, awarding the Division custody to secure A.Y. and R.T.'s adoption. C.J. appeals from the order terminating his parental rights.
Our review of a trial judge's findings and conclusion to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). The factual findings which undergird such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 2 69 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). If an appellant challenges the trial judge's evaluation of the underlying facts and the implications drawn from those facts, the "traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) ("There is an exception to that general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review" (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). "Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." Ibid. However, this court accords no special deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts[,]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which this court reviews de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
C.J. asserts he never acted to harm A.Y. and suggests "[h]is only mistake was leaving the parenting decisions up to [A.Y.'s] mother and [her paramour] for so long." He also believes he was not given sufficient opportunity to achieve reunification. We reject these challenges to the findings made under prongs one and two as unavailing.
The appropriate test is not whether C.J. actually harmed A.Y., but "whether the child's safety, health or development will be endangered in the future and whether the parent [is] or will be able to eliminate the harm." 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). It is well established parental harm "need not be physical" as "[s]erious and lasting emotional or psychological harm to [a] child[] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Children have "an essential and overriding interest in stability and permanency[.]" J.C., supra, 129 N.J. at 26. See also K.H.O., supra, 161 N.J. at 357. Further, "the attention and concern of a caring family is 'the most precious of all resources[,]'" particularly to young helpless children who need extensive care and nurturing. In re Guardianship of D.M.H., 161 N.J. 365 at 379 (1999) (quoting A.W., supra, 103 N.J. at 613).
Viewing the "best interests" test in light of amendments to N.J.S.A. 30:4C-15.1, which conform our statutes to the mandates of the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. §§ 301, 671(a)(16), 675(5)(A)(ii), by avoiding protracted efforts for reunification with a birth parent in favor of giving a child an expeditious, permanent placement, the law provides a parent's failure to provide a "permanent, safe, and stable" home for a child in desperate need of constants in her life engenders significant harm to the child. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). Id. at 383. See also N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (holding "harms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, bonding relationship to foster parents, the severing of which would cause profound harm") (internal quotation marks omitted)). Similarly, a "parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. (citing K.H.O., supra, 161 N.J. at 352-54). Such conduct constitutes a "failure to provide even minimal parenting . . . ." Ibid.
The record shows C.J. repeatedly expressed a desire to parent A.Y., was affectionate toward her, and engaged in some services to aid reunification. Still, his efforts were inconsistent and insufficient to allow safe reunification.
Relying on the experts' opinions, the judge found C.J.'s conduct demonstrated he was unwilling or unable to offer A.Y. a permanent home. C.J.'s actions were insufficient to demonstrate he could be a viable caregiver for her now or in the near future. Specifically, C.J. minimized his criminal conduct and did not present strategies to assure sobriety after finally completing rehabilitation to overcome his longstanding substance abuse. Further, he did not consistently engage in visitation, and did not understand or refused to recognize the self-sacrifice necessary to extend security and stability needed by his emotionally fragile eight-year old child.
Most significant were C.J.'s limited efforts to obtain a residence and gain employment to feed, clothe and care for A.Y. C.J. protests the weight afforded his unsuccessful two-and one-half-year search for a job and suitable housing. Yet, he offers no justifiable reason why he could not find and keep a job or an apartment and no time frame when these basic milestones would successfully be achieved to meet the daily needs of A.Y.'s care. See K.L.F., supra, 129 N.J. at 44; A.G., supra, 344 N.J. Super. at 440; N.J.S.A. 30:4C-15.1(a)(1). We reject C.J.'s arguments and conclude waiting for more than two years anticipating he would reach these objectives was entirely sufficient.
Although severance of the bond between C.J. and A.Y. likely will result in some harm, termination of parental rights would not cause A.Y. "irreparable and enduring harm" as expected to be experienced were A.Y. required to indefinitely wait for a permanent placement, separate from her resource family and her brother, or be removed from C.J.'s care following a failed reunification effort. A.Y.'s resource family is committed to her care and well-able to mitigate the harm from any loss experienced from the severance of her relationship with her father. Accordingly, A.Y.'s stability and permanency, now achieved in the home of her resource family, must be paramount to the unsupported hope C.J. may seize future opportunities to assume the role of her parental caregiver.
We note C.J. mischaracterizes the impact of Dr. Williams Johnson's testimony, who opined A.Y. would suffer harm if her relationship with C.J. were severed. The fourth prong does not "require a showing that no harm will befall the child as a result of the severing of biological ties. The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.
The findings by the trial judge clearly and convincingly establish C.J. has caused harm by his absence in A.Y.'s life and remains unable to provide her with shelter and sustenance, despite repeated services and assistance extended by the Division to eliminate this harm and achieve reunification. Family members were considered as alternative placement. However, all were found unable to properly and safely provide for this child, or in the case of the North Carolina relative, the move would cause significant emotional disruption and distress to the child.
C.J. suggests the Division failed to provide him with employment, housing, and increased visitation. The facts of record belie this assertion. Of note, C.J. explicitly admitted he was not looking for employment and housing or attending visitation because he was unable to leave his home for fear his possessions would be stolen. We conclude this contention lacks sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E).
The uncontroverted expert testimony supported termination of parental rights because severing the ties to her father would not do more harm than good, but breaking the bonds with A.Y.'s resource family would likely cause serious psychological harm and deprive her of a chance at stability and permanence.
Following our review, we conclude the Division's proofs clearly and convincingly justify termination of parental rights. The trial judge's order will not be disturbed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION