Opinion
DOCKET NO. A-1396-15T1 DOCKET NO. A-1397-15T1
12-28-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.A.B. and E.T.B., SR., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF E.L.B., T.S.B., J.T.B., I.L.B., and M.E.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant L.A.B. (Durrell Wachtler Ciccia, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant E.T.B., Sr., (Grace Eisenberg, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Michelle Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.L.B. and T.S.B. (Todd Wilson, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.T.B., I.L.B. and M.E.B. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Hoffman, O'Connor and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-149-15. Joseph E. Krakora, Public Defender, attorney for appellant L.A.B. (Durrell Wachtler Ciccia, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant E.T.B., Sr., (Grace Eisenberg, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Michelle Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors E.L.B. and T.S.B. (Todd Wilson, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.T.B., I.L.B. and M.E.B. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants L.A.B. (Lori) and E.T.B. (Ernest) appeal from the November 17, 2015 judgment of guardianship terminating their parental rights to their five minor children. Defendants seek reversal, arguing the Division of Child Protection and Permanency (Division) failed to satisfy the four prongs of the best interests test required to terminate parental rights.
We use pseudonyms to protect the identity of the parties and for ease of reference.
Following our review of the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record and, therefore, discern no basis to disturb the conclusions. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court should not overturn the factual findings of a trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. We accord particular deference to a family court's fact finding, in recognition of that court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Here, Judge Francine Axelrad rendered a comprehensive oral opinion, in which she addressed the statutory standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law. In reaching her conclusions, she appropriately applied the controlling legal principles to the lay and expert evidence of record. We therefore affirm substantially for the reasons set forth in Judge Axelrad's opinion, as set forth on the record on November 16 and 17, 2015. We add the following comments.
I.
We discern the following facts from the record. Defendants are married and have a total of eight biological children. Three children were adults at the time of the guardianship trial: Lidia, Laura, and Ernest Jr. The remaining five children were the subject of the guardianship proceeding under review. They are: E.L.B. (Elizabeth, age twelve), T.S.B. (Tony, age eleven), J.T.B., (Jack, age six), I.L.B. (Irene, age five), and M.E.B. (Mark, age three).
The ages indicated are the children's ages at the time of trial.
On June 14, 2010, the Division learned Irene tested positive for marijuana and oxycodone following her birth. Both parents denied using marijuana. Lori stated she had taken Percocet prescribed by her dentist and admitted receiving no prenatal care. Defendants signed a safety protection plan and agreed to undergo substance abuse evaluations; however, they failed to complete the recommended treatment, and eventually told the Division they were not going to cooperate with services.
On June 22, 2011, the Division received a referral from Winslow Township Police that Lori and Ernest Jr. were involved in a physical altercation. The reporter also described the home as "filthy."
The next day, Division workers observed "what appeared to be black mold" in the bathroom and the house was dirty, causing the Division to substantiate Lori and Ernest for environmental neglect. The Division also substantiated Lori for physical abuse. A check of the children's school records revealed the children did not "attend school regularly," and were often tardy during the 2010-2011 year.
On July 29, 2011, the Division filed a complaint for care and supervision of the minor children based on the ongoing history with the family and defendants' failure to comply with services. The court granted the Division care and supervision, and on August 16, 2011, Division workers traveled to the home to serve Ernest and Lori with the order. Upon approaching the home, Division workers smelled the odor of marijuana and contacted police when nobody answered the door. Police obtained consent from Ernest to search, and discovered marijuana in the home and marijuana plants in a crawlspace. The police arrested Ernest and Lori and charged them with narcotic distribution, possession of marijuana, and endangering the welfare of a child.
The Division conducted a Dodd removal of the minor children and placed them with their maternal grandparents. The children underwent physical examinations and were found to have numerous health issues: Laura had a skin infection, Tony had rotten teeth, and Jack and Irene had filthy hygiene. On August 18, 2011, the court granted the Division custody, care, and supervision of the children.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth & Family Servs. v. S.I., 437 N.J. Super. 142, 149 n.4 (App. Div. 2014).
After the removal, the Division referred defendants for substance abuse evaluations and parenting classes. Ernest attended Rehab After Work, an outpatient treatment center, completing his treatment on December 6, 2011. Lori attended a treatment program, which she did not complete. Both completed parenting classes. On December 19, 2011, after finding defendants abused or neglected the children, the court returned custody of the minor children to defendants, but the children continued under the care and supervision of the Division.
The Division next received a referral in September 2012, after Mark tested positive for marijuana and oxycodone following his birth. Lori's drug tests were negative. The Division concluded the allegations of neglect were unfounded but kept the case open so Lori could receive additional services.
Lori was scheduled to attend substance abuse treatment and parenting classes between September 2012 and October 2013, which she started but did not complete. Lori claimed she could not complete the services because she had no one to care for her children; however, Division caseworker Shawn Morton testified the Division offered Lori transportation and help with daycare services, which she declined.
Lori later testified she began using heroin in December 2013; thereafter, she used the substance "[t]wice a day." She stated Ernest was supplying the heroin, which he was also using.
On January 24, 2014, the Division received a referral stating one-year-old Mark injured himself falling down the stairs, the children had missed substantial amounts of school, and the parents were using drugs. Division workers traveled to the home to investigate on January 28, 2014, and observed it in "complete shambles." Ernest Jr. stated the house was messy because he had thrown a party while the rest of the family was in the Poconos over the weekend. Lori further denied Mark fell down the stairs, but Laura admitted Mark fell while she was cooking dinner. On the same date, the police arrested both defendants on outstanding warrants, and the Division executed a Dodd removal of the minor children. The Division later placed the children in four different resource homes. The children did not return home after this removal.
The Division determined allegations of medical neglect were established for the lack of medical care Mark received after the fall. The Division also substantiated both defendants for neglect based upon the deplorable condition of their home.
The Division referred both parents for substance abuse evaluations and psychological evaluations after the January 2014 removal. Caseworker Morton testified both parents failed to comply with these services. The parents attended weekly visitation with their children after the removal through summer of 2014, but were often late. The Division provided the parents with bus passes to attend these visits. However, following the last removal and up to the date of the guardianship trial, defendants were arrested and incarcerated multiple times. Lori tested positive for cocaine in February 2014. Ernest testified he became depressed after the children's removal and said he started using heroin.
On March 1, 2014, police arrested Ernest at a convenience store for an expired inspection sticker and found a gun and drugs on his person. Lori was arrested during this incident for a disorderly persons' offense. Both defendants were also incarcerated on April 23, 2014.
On July 2, 2014, police observed Lori, Ernest, and Ernest Jr. in a vacant lot in Camden. Police searched Ernest and found eight bags of heroin in his pockets. Police also arrested Ernest on July 30, 2014, on charges of receiving stolen property, burglary, and conspiracy. Since that date, Ernest remained incarcerated. He pled guilty and received a sentence of five years of incarceration with three-and-a-half years of parole ineligibility for the gun charge. He will be eligible for release on parole in 2018.
Lori was also incarcerated on October 2, 2014. Due to their incarcerations, the court suspended the parents' visitation with their children. Lori was released on January 25, 2015, and ordered to participate in a community service program.
Until January 2015, the Division's plan for the family was reunification. This changed, however, on January 14, 2015, when the court approved the Division's new permanency plan for termination of parental rights, followed by adoption. The judge found the Division had provided reasonable efforts for reunification. On February 20, 2015, the Division filed its guardianship complaint.
On April 13, 2015, Lori was again incarcerated for missing five days of her community service program. Lori later testified she missed the program because she had to attend evaluations and interviews, and claimed she let the program know by phone. Lori reported she entered a substance abuse program in jail, which included group therapy, counseling, and education. Upon her release from jail on July 17, 2015, Lori began living with her daughter Laura and T.H., Laura's boyfriend. She started substance abuse services with the Center for Family Services on August 10, 2015, and began looking for employment. By October 2015, Lori obtained a job at a donut shop and had applied for housing from social services.
After the removal, the children were moved to multiple resource home placements. Tony was moved to the New Jersey Mentor program in March 2014 due to behavioral issues, and was later diagnosed with adjustment disorder and was recommended for placement in a therapeutic home. By November 2014, Elizabeth was on her fifth resource home, Irene on her sixth, Jack on his fourth, and Mark on his fifth and current home. In December 2014, Irene was moved to her seventh and current resource home. Jack was moved to Irene's resource home in February 2015.
On May 28, 2015, Tony was removed from his resource home due to behavioral issues and was transferred to a new placement, joining Elizabeth. On June 22, 2015, both Elizabeth and Tony were moved to Elizabeth's resource home; Elizabeth's former resource parents did not want to adopt her.
As required by Rule 2:6-11(f), the Law Guardian for Elizabeth and Tony advised this court, by letter dated June 21, 2016, that Tony was removed from his resource home and placed in a prospective adoptive home.
The Division further explored family members as placement options during this period. During visitation on February 27, 2014, the Division spoke with Lidia, the oldest child, who expressed interest in taking the boys. Caseworker Morton later testified the Division called Lidia several times but never received a response. On October 9, 2014, the Division spoke with the maternal grandparents, but they were unable to provide care. On May 21, 2015, Laura spoke to the Division about "taking one or two of the children" to live with her and her boyfriend T.H. in their apartment.
On June 11, 2015, the Division sent a rule-out letter to the paternal aunt and uncle, ruling them out as placement options because they were unwilling to care for the children. On that same date, the Division sent a rule-out letter to a maternal cousin, ruling him out because, having three children of his own, he was unwilling to care for defendants' children.
On August 12, 2015, Lori proposed both Lidia and Laura as caretakers. The Division reminded Lori she had proposed Lidia before but Lidia never responded to the Division's efforts to contact her. Lori also requested the Division consider kinship legal guardianship (KLG), N.J.S.A. 3B:12A-1 to -7, but the Division confirmed its plan was termination of parental rights. Notwithstanding its permanency plan, on August 17, 2015, the Division investigated Laura and T.H.'s apartment to determine if it was appropriate for placement. Shortly thereafter, the Division ruled out both Lidia and Laura as caretaker options, noting Lidia had failed to respond to Division attempts to contact her, and Laura was not an option because Lori was residing in her apartment. The Division also noted Laura's living space was only a one-bedroom apartment, and Laura and T.H. would need assistance from the Division in order to provide adequate care.
The termination trial began on August 11, 2015, as these investigations took place. On August 13, 2015, the court conducted in camera interviews of Elizabeth and Tony, and both said they wanted to go home to their parents. Because of their desire to return home, the Law Guardian asked the court for substitute counsel for Elizabeth and Tony, which the court granted on August 18, 2015.
Also on August 18, the Division advised the court it was trying to work with the prison social worker for Ernest for him to receive substance abuse services. Caseworker Tara Lang later testified there was a one-year backup for services, and Ernest was on the waiting list.
After an adjournment, the trial resumed on October 1, 2015. The court heard testimony from the Division's expert, Dr. Linda Jeffrey, Ph.D., regarding psychological and bonding evaluations she conducted with the children and parents in May, June, and July 2015. Dr. Jeffrey testified Lori was "not prepared to provide a minimal level of safe parenting for her children." She further noted Lori did not take responsibility for her substance abuse, and had a personality disorder based in narcissism and antisocial behavior. Dr. Jeffrey estimated it would take a minimum of two years to provide minimally adequate parenting, if she actively engaged in services.
Regarding bonding evaluations with the children, Dr. Jeffrey found Elizabeth and Tony had "ambivalent insecure attachment[s]" with Lori. She said the children would suffer some harm if the relationship with their mother was severed, but it would not be serious and enduring. She further stated an insecure attachment is harmful to a child because it teaches the child to love someone they cannot depend on, and found it was necessary to sever the ambivalent insecure attachment for the children's development, so they could form secure attachments with reliable caregivers.
Dr. Jeffrey further found Jack and Irene had "insecure attachment[s]" with their mother, and said if these attachments were severed they would suffer some harm, but not serious and enduring harm because there was no secure attachment. She also noted Mark's attachment with Lori was on the level of a "friendly visitor."
Regarding her evaluation of Ernest, Dr. Jeffrey testified his "judgment and his personal insight were very deficient" and he was "not prepared to provide a minimal level of safe parenting." She said he would need one to two years of therapy outside of incarceration in order to learn to provide minimally adequate parenting. Dr. Jeffrey found Elizabeth and Tony had "ambivalent, insecure attachment[s]" with their father, Jack and Irene had "insecure attachments," and Mark related to Ernest as a "friendly visitor." She testified none of the children would likely suffer serious, enduring harm if their relationship with their father were severed.
Dr. Jeffrey also conducted bonding evaluations with Jack, Irene, and Mark and their resource parents. She testified Jack and Irene had established the "foundation for secure attachment" with the resource parents. She testified even if the children were moved to another home, it would still be in their best interests to sever ties with their parents in order to achieve permanency. She further stated Mark had a "secure attachment" to his resource mother and would likely be at risk for serious harm if this attachment were severed. Dr. Jeffrey also conducted psychological evaluations of Elizabeth and Tony, and noted Elizabeth had special needs, specifically a communication disorder.
The Law Guardian for the three younger children arranged for evaluations by another psychologist, Chester Sigafoos, Ph.D. Dr. Sigafoos testified the three younger children all had "secure attachment[s]" with their foster parents, and said the children would suffer "serious and enduring" harm if their relationship with the resource parents were severed.
Defendants presented their expert psychologist, Dr. Michael Wiltsey, Ph.D., who conducted bonding evaluations of the children with Lori and their foster parents. He testified Elizabeth and Tony would "definitely, . . . suffer some psychological harm" if their relationship with their mother were severed. He stated Jack and Irene would suffer harm if their relationships with their mother were severed, but said their current foster families could reduce the harm. Dr. Wiltsey testified Mark was attached to his foster mother and would likely not experience significant harm if his bond with his mother were severed. He further testified Lori was not capable of parenting at that time. He recommended Lori receive an additional six to eight months to comply with the Division and remain free from incarceration.
On October 27, 2015, Laura and T.H. filed a custody application for defendants' five minor children. T.H. testified he called the Division on October 2 as he and Laura were trying to get a bigger apartment, but the Division told him they would oppose an application for custody. Caseworker Tara Lang testified that even if they obtained a bigger space, the issue remained that, at the time, Laura and T.H. wanted temporary custody. She also testified the Division's current plan was resource home adoption for all the children, but if they were unable to be adopted by their current caregivers, the Division would begin the select home process. She noted Elizabeth and Tony were doing "extremely well" in their current placement but that Tony had started acting out. She stated based on her ten years of experience, the children were adoptable, and at that time, each of the children were in homes willing to adopt them.
On November 2, 2015, Lori's substance abuse counselor from the Center for Family Services, Shannon Gildea, testified regarding Lori's progress. She said Lori had attended twenty-six required group sessions up to that point, but missed several individual counseling sessions without notice, and had not attended any of the required 12-step program sessions. Lori also submitted to a hair follicle test in late October, which came back negative for drugs.
At the conclusion of the trial, Judge Axelrad first denied Laura and T.H.'s custody application, concluding "under the totality of the circumstances, I am not satisfied that [Laura] and [T.H.] have the training, maturity, stamina, financial wherewithal and overall stability to provide a sufficiently stable environment attuned to the children's needs on a daily basis." The judge then terminated Ernest and Lori's parental rights in a detailed, two-day oral opinion, concluding the Division satisfied the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Both parents appealed, and the Law Guardian filed a brief supporting their appeal for the two older children, Elizabeth and Tony. The Law Guardian for Jack, Irene, and Mark filed a brief supporting the Division and urging affirmance of the trial judge's decision.
II.
As noted, our review of a trial judge's findings and decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We will not reverse the family court's termination decision "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "[B]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, supra, 154 N.J. at 413).
No deference is required if the trial judge's findings "went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Moreover, a trial judge's legal conclusions, and the application of those conclusions to the facts, are always subject to plenary review by an appellate court. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).
Parents have a fundamental right to raise their biological children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating that parents have a liberty interest in raising their children). However, these rights are not absolute; the State has a responsibility to protect the welfare of children, which is achieved by the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. This standard is codified at N.J.S.A. 30:4C-15.1(a) and requires the State to establish each of the following four elements by clear and convincing evidence before parental rights may be severed:
(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.
These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are fact-sensitive and require particularized evidence addressing the specific circumstances present in each case. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010) (citation omitted).
A.
The first prong of the best interest standard requires the harm shown by the parental relationship "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. This prong may be triggered by an "accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004) (citation omitted). Generally, the proofs "focus on past abuse and neglect and on the likelihood of it continuing." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 192 N.J. 68 (2007).
Regarding this first prong, we are satisfied the record contains ample evidence to support the court's determination both defendants' conduct endangered their children's safety. Discussing prong one, Judge Axelrad detailed the full history of this case, beginning with the first removal in 2011 and the defendants' arrests for marijuana possession. She further noted Irene and Mark's positive drug tests upon birth, and Lori's failure to complete substance abuse treatment.
The judge then discussed the second removal in January 2014, noting the children's school absences and their removal due to the condition of the home. The judge noted, "[T]wo and a half years after the Division had to step in because of the house being in a deplorable condition, such that it was a hazard for young children, the identical conduct reoccurred." The judge also noted the parents' drug use and inability to take responsibility for their actions.
Ernest argues the trial judge erroneously observed "the identical conduct reoccurred," without considering Ernest Jr.'s explanation the house was messy at the time of the second removal because he had a party while the family was away in the Poconos. Ernest also cites the testimony of the Division caseworker, who said although the house was dirty on the removal date, it was clean at other times. Ernest also argues Elizabeth and Tony did not miss school due to their parents' inaction but because Elizabeth faced bullying and mistreatment by teachers. He further argues, notwithstanding the Division establishing the parents for medical neglect, Mark was not injured falling down the stairs.
Even if we accept these arguments, they do nothing to undermine the remaining, compelling evidence in the record supporting a finding on prong one, most notably the parents' drug use, incarcerations, and inability to take responsibility for their actions. Defendants' conduct significantly threatened and continues to threaten the safety and welfare of the children.
Lori also argues the Division did not show her substance use harmed her children, and the passage of time from the January 2014 removal up through the trial was not an on-going harm because the children were safe in foster care. We reject this argument. The events described in the judge's detailed review of the trial evidence clearly demonstrate a continuing threat of harm to the children. Therefore, we conclude the record contains sufficient credible evidence to support the court's finding the Division satisfied prong one by clear and convincing evidence.
B.
The second prong of the best interest test relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. It requires the State demonstrate the parent is "'unwilling or unable to eliminate the harm' that has endangered the child's health and development," or the parent "has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." Ibid. (quoting N.J.S.A. 30:4C-15.1(a)(2)). The trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).
Addressing this prong, Judge Axelrad referenced her findings from prong one, and then discussed the parents' continued drug use and incarcerations through 2014. The judge noted Ernest continued to engage in criminal behavior while his children were in placement. The judge also discussed Lori's progress since her most recent release from jail, noting although she attended her group therapy, she missed a substantial number of individual sessions and twelve-step program appointments, and also had a positive in-court urine test for opiates in October 2015.
The judge then reviewed the experts' testimony, noting they agreed Lori minimized her substance abuse and could not provide safe parenting. She also referenced Dr. Jeffrey's evaluation of Ernest, that he would need one to two years after his release from a controlled environment before he could provide safe parenting. The judge also engaged in a lengthy discussion of the second part of prong two, finding the Division proved removing each of the children from their resource parents would cause them serious and enduring harm, which defendants would not be able to mitigate.
The record fully supports the judge's finding that defendants are unable and unwilling to correct their harmful behaviors. Ernest argues the judge's determination was erroneous because he complied with services after the first removal, and further acted appropriately by signing up for the waiting list for substance abuse services in prison. However, we note Ernest failed to attend services between the January 2014 removal and his July 2014 incarceration, and find the judge appropriately relied on Dr. Jeffrey's determinations that Ernest would not be ready to parent, in a best case scenario, for one to two years after his release from prison.
Lori similarly argues her progress in substance abuse treatment, parenting classes, and employment during and since her release from incarceration showed she was ready to safely reunify with her children. However, the judge's finding Lori's attendance at these programs was inconsistent and the experts found her unfit to provide safe parenting is supported by the evidence. We therefore conclude the trial judge did not err in finding the Division proved prong two by clear and convincing evidence.
C.
Prong three of the best interests test contains two parts. The first part requires the Division show it made "reasonable efforts to provide services to help the parents correct the circumstances that led to the child's placement outside the home." M.M., supra, 189 N.J. at 281. These efforts should focus on reunification of the family. K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" under the statue 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.Whether the Division acted appropriately must be decided "with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999) (citations omitted).
[N.J.S.A. 30:4C-15.1(c).]
Regarding the first part of prong three, the Law Guardian for Elizabeth and Tony argues the Division erred by changing its plan to adoption while both parents were incarcerated, despite failing to assist them with services, visitation, or contact while they were in prison. The Law Guardian for Elizabeth and Tony further argues the Division failed to consider Lori's progress at the time of trial, and the services provided during this time had "nothing to do with reunification" because the Division already decided on adoption. Ernest similarly argues the Division "made no efforts to provide services to Ernest after his incarceration," including visits and calls with his children. He also contends the trial court erroneously suspended his visitation with "no explanation" besides his incarceration.
We disagree with these arguments. Even assuming the Division could have made a better effort to provide defendants with services during their incarceration, the judge's decision turned on the services offered to both Lori and Ernest before incarceration, which they failed to appropriately utilize. The judge noted Lori missed her treatment from January 2014 until her October 2014 incarceration, and Ernest attended treatment in 2011, but relapsed, and did not attend treatment prior to his incarceration in July 2014.
Caseworker Morton's testimony further shows the Division attempted to assist the parents after the January 2014 removal, but they were not compliant. Courts should consider whether the parents actively participated in the reunification effort. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012) (citation omitted). We therefore find the Division did not "rush" into termination, as the Law Guardian for Elizabeth and Tony suggests, but made this decision after the parents failed to utilize Division services and otherwise failed to address their problems. We also reiterate that Lori's progress at the time of trial was inconsistent. Most notably, she tested positive for opiates during trial.
In support of their argument the Division did not make reasonable efforts during incarceration, the Law Guardian and Ernest rely on New Jersey Division of Youth & Family Services v. R.G., 217 N.J. 527 (2014), where our Supreme Court in addressing prong three found the Division failed to properly assist an incarcerated father. The Court stated the Division "should not avoid providing services to all incarcerated persons, regardless of their seeming unwillingness to improve their parental fitness." Id. at 562.
However, in R.G., the father was incarcerated six months after the birth of his daughter, and released five years later while the guardianship trial was in progress. Id. at 535. The Court found the Division only paid "cursory" attention to the father during its involvement with the family, and never provided a bonding evaluation or helped him telephone his children from prison. Id. at 562. The Court further noted, despite the father's impending release, the Division never attempted to schedule services upon release. Id. at 562-63.
We find the case under review distinguishable from R.G. Regarding Ernest, he was not set for immediate release at the time of trial but would remain in prison or a halfway house for three more years. With regard to both parents, the Division did not have "cursory" involvement but was heavily involved with the family, and decided on termination only after extensive efforts to achieve reunification failed. We are therefore satisfied the trial judge did not err in finding the Division offered appropriate services.
We next address the second part of prong three, which requires the court "consider alternatives to the termination of parental rights." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013) (citations omitted). "When a child is removed from the parents' home, [the Division] must assess whether relatives of the child can provide care and a home." Ibid. (citations omitted).
On this point, the judge determined the Division adequately investigated and ruled out the maternal grandparents, paternal aunt and uncle, and maternal cousin. The judge noted Lori presented Lidia as an option, but Lidia never responded to the Division. The judge also reiterated her findings regarding Laura's and T.H.'s application for custody, ruling them out for placement.
The Law Guardian for Elizabeth and Tony first argues the Division should not have ruled out Lidia for placement of the children, based on no contact, because the Division failed to discuss the issue with Lidia during the numerous visits she attended. However, the judge found the Division attempted to contact Lidia to discuss this issue, but never received a response.
Defendants also argue the Division erroneously ruled out Laura because of the size of her apartment, without considering whether it could provide assistance, and further erred by ignoring their efforts to obtain a bigger apartment and T.H.'s new job. However, even with a bigger apartment, the issue remained that they did not want permanency at that time, only offering themselves as a temporary placement. Although Laura and T.H. later applied for custody during trial, the judge provided a detailed explanation why Laura and T.H. were not suitable as placement options, including their short employment history, the short span of their relationship, and the logistical issues they would face in caring for the children while working.
Last, the Law Guardian for Elizabeth and Tony argues the Division improperly failed to consider KLG. The Law Guardian acknowledges KLG is only available where adoption is "neither feasible nor likely," P.P., supra, 180 N.J. at 509, but argues such is the case for Elizabeth and Tony. However, the Division's adoption case worker testified she believed the children were adoptable, and the judge found her testimony credible.
In sum, we are satisfied the evidence in the record supports the trial judge's determination the Division made the required "reasonable efforts," and also appropriately considered all family placement options. We conclude the record contains sufficient credible evidence to support the court's finding the Division satisfied prong three by clear and convincing evidence.
D.
To satisfy the fourth prong, the Division must prove by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The court must determine "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. "The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship." H.R., supra, 431 N.J. Super. at 226 (citation omitted).
For this prong, the court must assess the children's relationships with their foster and biological parents. K.H.O., supra, 161 N.J. at 355. A mere showing the child would be "better off" with an adoptive parent is not sufficient. In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999) (citation omitted). Instead, the question is whether "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.
First discussing the three younger children, Jack, Irene, and Mark, Judge Axelrad noted the experts found separating them from their foster parents would cause serious and enduring harm, and they needed permanency. Dr. Jeffrey testified none of the children had "secure attachments" with either parent, and therefore severance would not cause serious and enduring harm.
Ernest argues the children's history of multiple placements suggests they will continue to cycle through foster homes, that select home adoption is "unconscionable," that the children will be harmed by separation from their siblings, and cites the children's stated desires to return home and a Division record suggesting Irene's foster parents "wavered" on their commitment to adopt. He also contends the Division's failure to provide him contact with the children during prison led to the lack of secure attachment. However, based on the evidence in the record, we find the trial judge appropriately determined severing the relationship between the parents and the younger children would be in the best interests of each child.
Regarding the older children, Elizabeth and Tony, the trial judge credited Dr. Jeffrey's testimony that even if they are not adopted and are instead placed in a select home, it would be in their best interests to remain there rather than return to their parents. Although no bonding evaluations were conducted with
Elizabeth and Tony and their resource parents by the time of trial, the judge noted "it appears [Elizabeth] and [Tony] are happy, that they're getting comfortable, that they're loved."
Challenging the judge's determination on prong four, defendants rely on E.P., supra, 196 N.J. at 98, where our Supreme Court reversed a termination decision despite expert testimony that the mother did not have the capacity to care for her daughter. At the time of trial, the daughter had been moved to her seventh foster home, and there were no options for permanent placement. Id. at 109. The Court found, because the child's only emotional bond was with her mother and the hope of adoption was "slim," termination had no "compensating benefit." Ibid. The Court noted severing the bond with her mother would be "extremely painful" and would remove her only enduring emotional relationship. Id. at 110-11.
The Law Guardian for Elizabeth and Tony argues "there is no indication that either child will ever be adopted," and stresses the stated desire of the children to return home, citing our decision in New Jersey Division of Youth & Family Services v. L.M., 430 N.J. Super. 428 (App. Div. 2013). In L.M., the trial judge found although the daughter would have a "grief reaction" if it terminated the mother's parental rights, termination was necessary to help the child achieve permanency under selective home adoption. Id. at 440. An expert also found the daughter would not suffer serious harm if separated from the father. Id. at 438. We reversed for both parents, finding the eleven-year-old daughter's age, considerable special needs issues, multiple placements, and "extreme behavioral disorders" suggested she did not have a good chance of achieving permanency. Id. at 453. We noted the Division was "promising only the possibility, unlikely though it may be, that [the child] may be adopted. Given [the child's] bleak prospects for adoption, the termination of her parental rights does not appear to have any real compensating benefit." Id. at 454.
We reject these arguments challenging prong four, finding the cited cases distinguishable. We acknowledge that Tony and Elizabeth have behavioral and mental health issues, and that they expressed their desire to return home. However, Dr. Jeffrey found Elizabeth and Tony would not suffer serious and enduring harm if severed from their parents (Dr. Wiltsey found they would suffer some harm if separated from Lori). Although in L.M., supra, 430 N.J. Super. at 438, we vacated termination for the father even though an expert said separation would not cause serious harm, Dr. Jeffrey found it was necessary for Elizabeth and Tony's development and stability to sever their "ambivalent insecure attachment[s]" with their parents. Additionally, Dr. Jeffrey testified Lori would need two years of therapy in order to become a suitable parent, and Ernest will need at least a year of therapy outside a controlled environment in order to become a suitable parent.
Therefore, we find the judge appropriately determined it was not in the children's best interests to prolong placement. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592-93 (App. Div. 1996) (noting it is not in the best interests of a child to indefinitely prolong resolution of a child's status where the parent is unable to provide care); L.J.D., supra, 428 N.J. Super. at 483-84 (noting children should not "languish indefinitely" in foster care while the parent attempts to correct their parenting deficiencies (citation omitted)). Under the fourth prong, an important consideration is the child's need for permanency. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012) (citation omitted). "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his [or her] most deeply formed attachments will not be shattered." Ibid. The record lacks any credible evidence that either defendant would have been able to provide any of the children with a stable, nurturing environment within a reasonable time frame.
We also note the judge credited the testimony of the adoption caseworker, who said she believed the children were adoptable. Last, we note that, since the completion of the trial, Tony has been moved to a pre-adoptive home. The record contains sufficient credible evidence to support the court's finding the Division satisfied prong four by clear and convincing evidence.
We are satisfied that substantial, credible evidence in the record supports trial court's termination of defendants' parental rights in this case. We therefore uphold the decision of the trial court.
Any arguments not specifically addressed in this opinion lack sufficient merit to warrant discussion in a written opinion. 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