Opinion
DOCKET NO. A-2532-14T4
02-23-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.D.C., Defendant-Appellant, IN THE MATTER OF THE GUARDIANSHIP OF G.M.B. and D.J.C., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Rothstadt and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-44-12. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant D.D.C. appeals from the termination of his parental rights to his daughter, D.J.C. (Dana), born April 28, 2007. Dana's mother, A.G.B. executed a voluntary surrender of her parental rights and is not a party to this appeal. For the following reasons, we affirm.
We use initials and a fictitious name to protect the privacy of the child and avoid confusion.
In this appeal, defendant argues that the Division of Child Protection and Permanency (the Division) failed to prove all four prongs of the best interest test, N.J.S.A. 30:4C — 15.1(a), by clear and convincing evidence. He also argues that the trial court abused its discretion in admitting an expert report into evidence without requiring the expert to testify at trial. After reviewing these arguments in light of the record and applicable legal principles, we conclude they lack merit.
Defendant also argues that the trial court erred in denying his request for visitation with Dana's half-sister, G.M.B. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
As a threshold matter, we note that great deference is afforded to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007 ); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). This is particularly true when findings are based on "the trial court's credibility determinations." M.M., supra, 189 N.J. at 279; see also Cesare v. Cesare, 154 N.J. 394, 412 (1998). Thus, we "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104; see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). That is unnecessary here; the record provides substantial credible support for the trial judge's findings to merit our deference.
I.
Termination of parental rights is warranted when the Division establishes by clear and convincing evidence, N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010), 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 [D]ivision 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 "four criteria . . . are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992).
The evidence relating to the four prongs here is similarly overlapping. The record provides compelling evidence that defendant suffers from serious mental health issues that he has failed to successfully address in treatment. He has a history of failing to control his anger that includes exposing Dana and G.M.B. to acts of domestic violence. He failed to complete treatment to address his substance abuse problem. His presence in Dana's life has been inconsistent due to multiple incarcerations as well as his own sporadic attendance at visitation.
We evaluate the evidence supporting the four prongs within this context.
A.
Harm, as addressed by the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. However, the Division does not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012).
Defendant contends that because Dana's safety, health, and development were not endangered, the court erred when it found the first prong satisfied. We disagree. Defendant posed a danger to Dana's health and development as a result of: his inability to refrain from explosive and violent behavior due to his mental illness, substance abuse or a combination thereof; and his inability to provide her with stability.
The Division's first involvement with defendant and A.G.B. was in May 2008 following a domestic violence incident. In the years that followed up until the guardianship trial in 2014, defendant repeatedly engaged in violent behavior, including acts of domestic violence against A.G.B. in front of the children. On one occasion, four-year-old G.M.B. stated she was afraid of defendant because she witnessed him throw A.G.B. down a flight of stairs and put a knife to A.G.B.'s throat. When defendant was evaluated by Dr. Edward Baruch in June 2008, he admitted having bipolar disorder, schizophrenia and ADHD. He admitted to prior domestic violence and anger management problems. Defendant also acknowledged a criminal history and problems with substance abuse. Dr. Baruch diagnosed defendant with bipolar disorder, an intermittent explosive disorder and substance abuse problems.
Evidence of the explosive disorder was cited by the trial judge, who noted that D.D.C. had been unable to control his emotions or temper "many times" in the courtroom. She observed that the incident in which defendant attacked A.G.B., wielding a knife, occurred despite a restraining order. The trial judge stated defendant remained "either homeless or very housing insecure," lacking dependable housing for himself or his daughter. As the trial judge observed, defendant proved unable to maintain a level of mental health, leaving programs even after a number of months and decompensating.
The judge noted defendant's history of substance abuse that contributed to the consequences of his mental illness and his sporadic compliance with treatment, sometimes going "months and months without any visits at all." Defendant refused to participate in or complete mental health and substance abuse services. He never successfully completed a treatment program. One program administrator stated defendant failed to attend group activities, did not engage in therapy conversations, abused drugs on the program's grounds, played on his telephone during treatment, and refused to obey program rules. This failure to complete substance abuse treatment coupled with defendant's positive drug tests provided strong evidence of "harm." See K.H.O., supra, 161 N.J. at 353 (finding an ongoing and un-rehabilitated drug addiction can be harmful to children).
Defendant's multiple incarcerations, spanning large portions of the years 2008 through 2014, rendered him incapable of caring for Dana. In re Adoption by L.A.S., 134 N.J. 127, 137-39 (1993); N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534-35 (App. Div. 2006). When he was not incarcerated, defendant was inconsistent in attending visitation. His absence and inconsistency harmed Dana by depriving her of a stable parental relationship.
Dr. Linda Jeffrey conducted a psychological evaluation of defendant. She testified that defendant was not capable of parenting Dana due to his inability to maintain a stable home, his joblessness, his drug use, his frequent incarceration, his refusal to participate in treatment services including those that would have stabilized his mental health, and his sporadic visitation.
The court's conclusion that the Division presented clear and convincing evidence to satisfy the first prong was supported by substantial credible evidence.
B.
The second statutory prong requires proof "that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (quoting N.J.S.A. 30:4C-15.1(a)(2)). "Mental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat his mental illness [and] the mental illness poses a real threat to a child." F.M., supra, 211 N.J. at 450-51.
Defendant argues that he maintained a positive relationship with Dana and, therefore, the court erred when it held that he was unwilling or unable to eliminate the harm facing the child. Defendant's claim to a positive relationship with Dana was refuted by Dr. Jeffrey's observations of the bonding evaluation between defendant and Dana. Defendant failed to participate fully and showed little emotional connection with his daughter.
Although defendant did not abandon an interest in Dana, he was inconsistent in his visitation and was never able to provide a stable home for her. Defendant struggled with homelessness and did not have a job, car, or driver's license. A parent's inability to provide a safe and stable home satisfies the second prong of the analysis. K.H.O., supra, 161 N.J. at 348-49. Defendant was provided with a period of years to remediate his behavior while Dana was in a foster placement, but he never demonstrated any commitment to reunifying his family. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (explaining that a child cannot be held prisoner by a parent's rights), certif. denied, 180 N.J. 456 (2004).
As to the harm presented by defendant's mental illness, inability to control his anger and substance abuse, defendant's history of refusing to participate in treatment programs provided substantial credible evidence of an inability to ameliorate the risk of danger to Dana. The record amply supported a conclusion it was not "reasonably foreseeable that [defendant] can cease to inflict harm upon" Dana. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).
C.
Under the third prong of the analysis, N.J.S.A. 30:4C-15.1(a)(3), the Division was required to demonstrate it made reasonable efforts to reunite defendant and Dana by helping him correct the problems that led to the Division's involvement. K.H.O., supra, 161 N.J. at 354. Thus, pursuant to N.J.S.A. 30:4C-15.1(a)(3), the court must evaluate whether the Division had made "reasonable efforts" aimed at the reunification of the family. I.S., supra, 202 N.J. at 209-10. Specifically, "reasonable efforts" include:
(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 Division's efforts are measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. In re Guardianship of D.M.H., 161 N.J. 365, 390, 393 (1999).
Defendant contends the court erred when it held the Division satisfied the third prong of the best interests test because the Division failed to provide services that were appropriately tailored for him in violation of the Americans with Disabilities Act, 42 U.S.C.A. § 12101 to § 12213, and did not explore alternatives to the termination of parental rights. This argument lacks merit.
The Division provided defendant with psychiatric evaluations, recommendations to mental health treatment providers, substance abuse evaluations, and referrals to substance abuse treatment providers. There were repeated referrals to Unity Place, a program that specifically treats drug abusers who also have mental health problems, as well as a referral to Daybreak, a program with a focus on mental health and substance abuse. See D.M.H., supra, 161 N.J. at 390-93; see also A.G., supra, 344 N.J. Super. at 437 (holding that parents need to actively participate in services). These reasonable efforts were unsuccessful not because they were inappropriate but because defendant failed to follow rules, participate or stop using drugs. See A.W., supra, 103 N.J. at 610 (citing factors that suggest reunification efforts are no longer reasonable, including "parents [who] refuse to engage in therapy or other services" and "parents [who] cannot benefit from therapy or instruction due to mental retardation or psychosis").
The Division also attempted to facilitate his attendance at visitation by giving defendant numerous bus passes. See D.M.H., supra, 161 N.J. at 392-93. Although he accepted the passes and demanded more, his attendance at visitation did not improve.
The second inquiry under the third prong assesses the Division's efforts to explore alternatives to termination. Reunification with defendant was not viable due to his own instability and expert testimony that Dana would not be safe living with him. The Division attempted to place Dana and her half-sister with their maternal aunt, K.B., after they were removed from the home. She was initially ruled out due to a lack of suitable and safe housing. When conditions permitted placement of the children with K.B., problems arose regarding K.B.'s boyfriend, her inadequate supervision of visitation with A.G.B., and an allegation the girls had lice, resulting in their temporary removal. The children were finally removed from K.B.'s care after an incident in which her infant ingested suboxone, an opioid, and child endangerment charges were filed against her. She was subsequently ruled out as a candidate for kinship legal guardianship. Defendant offered his grandmother, E.H., as a potential placement for Dana, but there was no indication that she wanted to serve.
D.
Lastly, the fourth prong addresses whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The focus of this prong is whether the child will suffer a greater harm from the termination of ties with the natural parents than from the permanent disruption of the child's relationship with the foster parents. K.H.O., supra, 161 N.J. at 354-55. In a contested action, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Although the proofs will generally "focus on past abuse and neglect and on the likelihood of it continuing[,] . . . the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid.
Defendant alleges the court erred when it held the termination of parental rights would not do more harm than good. Specifically, defendant contends that Dr. Jeffrey incorrectly determined that he shared an insecure bond with Dana and that her opinion was contrary to the record. The court found that during the five years Dana had been in a foster placement, defendant had not displayed any ability to undertake a parenting role. He failed to engage in consistent visitation and he could not provide proper care for himself, much less for a child. These findings were supported by Dr. Jeffrey's expert opinion.
Despite the passage of years, defendant was unable to remedy his parenting deficiencies. Defendant continued to violate the law, become incarcerated, abuse drugs, receive termination notices from his treatment programs for his failure to participate, remain jobless, and could not maintain a stable home. A child should not be forced to "languish indefinitely" in a resource placement while a parent tries to correct the problems that led to the Division's involvement. N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2002).
Under the fourth prong of the analysis, N.J.S.A. 30:4C-15.1(a)(4), the court must also balance the injury a child might suffer if parental rights are terminated against the harm the child may suffer if removed from his or her foster placement. K.H.O., supra, 161 N.J. at 355; see also E.P., supra, 196 N.J. at 108. The court is permitted to rely on the bond that a child has with a foster parent, K.H.O., supra, 161 N.J. at 363, and take into account a child's need for a nurturing relationship with an adult. C.S., supra, 367 N.J. Super. at 119.
Here, the court heard expert testimony from Dr. Jeffrey that Dana was thriving in a positive and nurturing environment with her foster family. The child was securely attached to a loving family. When a bond exists between a child and his or her foster family, and the parent cannot correct his or her behavior, the termination of parental rights will not do more harm than good. E.P., supra, 196 N.J. at 108. Here, the Division's goal was for both Dana and G.M.B. to be adopted by the foster family.
A.G.B. had executed an identified surrender of her parental rights to the foster family, who had decided to adopt her youngest child.
In sum, there was ample credible evidence to support the trial court's determination that all four prongs of the best interests test were satisfied.
II.
Dr. Jeffrey testified at trial regarding her prior evaluations of defendant and provided an expert opinion that was subject to cross-examination. Defendant argues that the trial court erred in permitting the psychiatric evaluation done by Dr. Baruch to be admitted in evidence over his objection without requiring the witness to testify. He alleges that reversal is required because the court relied upon impermissible hearsay. We disagree.
Unlike the reports we deemed impermissible hearsay in New Jersey Division of Youth & Family Services v. M.G., 427 N.J. Super. 154, 173-75 (App. Div. 2012), Dr. Baruch's report was not a forensic evaluation and was not prepared in anticipation of litigation. See id. at 174-75. His report was prepared when the Division first became involved in this case for the purpose of identifying what mental health issues, if any, defendant had and determining the appropriate type and scope of services to offer to him.
Rule 5:12-4(d) permits the Division to introduce "reports by . . . professional consultants" into evidence provided the documents satisfy the requirements of the business records exception, N.J.R.E. 803(c)(6) and 801(d). N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129, (App. Div. 2010). N.J.R.E. 803(c)(6) defines a business record as:
A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
Dr. Baruch's report satisfies these requirements and bears no indicia of untrustworthiness. We discern no abuse of discretion in its admission.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION