Opinion
DOCKET NO. A-4645-14T3 DOCKET NO. A-4661-14T3
01-05-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.R.G. and J.F., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.R.F., J.R.F., and J.R.F., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant S.R.G. (Dianne Glenn, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant J.F. (Kylie A. Cohen, Assistant Deputy Public Defender, on the briefs). Christopher S. Porrino, 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 (Margo E.K. Hirsch, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-146-15. Joseph E. Krakora, Public Defender, attorney for appellant S.R.G. (Dianne Glenn, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant J.F. (Kylie A. Cohen, Assistant Deputy Public Defender, on the briefs). Christopher S. Porrino, 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 (Margo E.K. Hirsch, Designated Counsel, on the brief). PER CURIAM
In this consolidated appeal, S.R.G. (Scott) and J.F. (Jessica) (collectively, defendants), the biological parents of J.R.F. (Jack), J.R.F. (Jacob), and J.R.F. (Joseph), appeal from the May 29, 2015 judgment of guardianship terminating their parental rights of their three children. In defendants' appeals, they contend that plaintiff New Jersey Division of Child Protection and Permanency (the Division) failed to prove each prong of the best interests test of N.J.S.A. 30:4C:15.1(a) by clear and convincing evidence. The Law Guardian joins in the Division's argument that the trial court correctly found that the Division proved each of the four prongs of the best interests test by clear and convincing evidence. Based upon our review of the record and applicable law, we are satisfied the Division met its statutory burden and affirm.
We utilize fictitious names for the parties and children for the purpose of confidentiality.
I.
We derive the following facts and procedural history pertinent to our decision from the voluminous record. Defendants are the biological parents of Jack, Jacob, and Joseph. Prior to the events and court history which led to the termination of their parental rights, defendants were the subjects of multiple referrals to the Division from 2006 through 2011.
On May 3, 2012, the Newark Police Department responded to defendants' residence on a report of child endangerment. Upon arrival, the officers observed the home was in "horrible" condition, and Jessica, who appeared to be "mentally unfit," was home alone with the children who were described as being "dirty" and unbathed. The officers further observed fresh bruising on Jacob, which he reported was the result of Jessica hitting him. At the time, Scott was across the street from the home. When approached by the officers, Scott stated, in Spanish, that Jessica was prescribed medication but did not take it consistently. After assessing the situation, the officers transported Jessica and the children to University Hospital for an evaluation. Scott gave the officers his contact information and advised them he would be at home.
Later that day, another referral was called into the Division concerning Jessica's mental health. The Division investigator, Diane Trail, who later testified at the fact-finding hearing, proceeded to the hospital. While there she observed Jack and Jacob had "soiled clothes, extremely dirty nails, and a stench." Both boys stated that defendants hit them with belts. These statements were corroborated by the red welts observed on the back of Jacob's neck.
Subsequent to the involuntary psychiatric hospitalization of Jessica and the determination that Scott was unavailable to care for the children after multiple unsuccessful attempts by the Division to reach him, the Division conducted an emergency removal and placed the children in two unrelated foster homes. The Division was later apprised that Scott contacted the Newark Police Department a few days after the removal in an attempt to locate his family. Police provided Scott with contact information for the local Division office.
The Division assessed a paternal aunt as a placement for the children. However, she was only in the country on a temporary visa. Jessica provided information about her sister, but later stated she did not want the children placed with her. The Division reached out to this aunt, but was unable to make contact at the phone number provided by Jessica. Another relative name was provided, but both maternal relatives eventually stated they were unable to care for the children.
Following the Dodd removal, the three children were placed in non-relative resource homes in which they lived at the time of the trial. Jack and Jacob were originally placed together. However, due to their engagement in inappropriate sexual and physical contact with each other, they were placed in different resource homes.
II.
The Division filed a verified complaint for custody, care and supervision on May 7, 2012. That same day, Scott appeared with counsel at the order to show cause hearing. Jessica was noticed but did not appear due to her hospitalization. At the conclusion of the hearing, the judge ordered that the children be placed in the custody of the Division after finding that it would be contrary to the children's well-being to be returned to defendants.
The same judge presided over all of the proceedings, Title 9, and Title 30, in this case.
A return hearing on the order to show cause was held upon Jessica's release from the hospital. It was noted at the hearing that defendants missed two appointments for psychological evaluations. At the hearing's conclusion, the custody of the children was continued with the Division.
The children were scheduled for medical exams on May 23, 2012. Defendants accompanied the Division caseworker to the appointment. The caseworker's report noted that "neither parent had control of the children's behavior and the children would not listen to their instructions." While in the nurses' station, Jessica was interviewed about her own medical history and the medical history of the children. In her responses, Jessica demonstrated difficulty staying on the topic of her children's medical history. Jessica denied the severity of her own mental health issues.
On June 6, 2012, defendants met with Dr. Gerard Figurelli for psychological evaluations. Dr. Figurelli noted in his report that Jessica suffered from a "history of significant mental illness" and that she "possess[ed] minimal insight into the nature of her mental illness and [that] she ha[d] not been consistently compliant with her treatment with psychotropic medication." The doctor recommended Jessica be closely monitored regarding her medication; and that she attend parenting skills classes, domestic violence counseling, and joint counseling with Scott.
Dr. Figurelli reported that Scott admitted to having attended court-ordered treatment for alcohol and cocaine abuse, but was in denial of the nature and severity of his problem. Further, it was reported that Scott was suffering from "some clinically significant symptoms of depression and anxiety of mild levels of intensity" at the time of the evaluation. Scott acknowledged Jessica's history of mental illness and non-compliance with her medications. Dr. Figurelli recommended that Scott participate in therapy, substance abuse treatment, anger management treatment, domestic violence counseling, and parenting skills classes.
III.
Following a fact-finding hearing, the judge found that the Division had demonstrated by a preponderance of the evidence that defendants had committed abuse and neglect pursuant to N.J.S.A. 9:6-8.21(c), and signed a dispositional order continuing the custody of the children with the Division. Defendants were ordered to comply with the recommendations from the June 6, 2012 psychological evaluation.
In support, the order provided that:
[T]he family home, where both parents resided, had minimal food and furniture in it. The parents had been involved with the Division in the past and did not reach out for any assistance regarding these issues. On May 3, 2012, the children were dirty, wearing dirty clothes, and emitted odors. In addition, [Jacob] had fresh bruise marks on him and [Jack] and [Jacob] stated that both parents hit them with belts. [Jessica] has a history of non-compliance with her medication for her mental health issues. [Scott] was aware of [Jessica]'s non-compliance and that [Jessica] was not rational when off her medication, but left the children in her care. On May 3, 2012, [Jessica] was held overnight by [the University of Medicine and Dentistry of New Jersey] for a psychiatric evaluation and [Scott] could not be located by the Division, despite knowing that the children had been taken to the hospital with [Jessica].
After an appeal by defendants, we reversed based upon "insufficient evidence" in a decision dated June 25, 2015. N.J. Div. of Child Prot. & Permanency v. J.F., Nos. A-5698-12, A-5699-12 (App. Div. June 25, 2015).
IV.
Review hearings were conducted on November 7, 2012 and February 7, 2013. At a permanency hearing on May 2, 2013, the judge approved the Division's plan of termination of parental rights followed by adoption for all three children finding Scott had not complied with services, including substance abuse treatment and parenting classes. The judge also found it would be unsafe for the children to be in Jessica's care as she continued to experience psychotic symptoms and refused to comply with a recommendation for a higher level of care.
From May 2012 through April 2013, the Division provided two-hour weekly therapeutic visitations at the Division's office. The visits were later terminated due to negative effects on the children premised upon, and in response to, the children's psychosocial evaluations.
On May 2, 2013, a permanency hearing was held, during which the Division presented a plan for termination of parental rights followed by adoption for the three children. The Division's plan was based on reports that Scott had been non-compliant with his services, including substance abuse treatment and parenting classes, and that Jessica continued to experience psychotic symptoms consistent with schizophrenia despite treatment. Moreover, Jessica was refusing to enter a higher level of care to treat her mental health issues, despite recommendations to do so. The judge determined the Division's plan was "appropriate and reasonable."
V.
The Division filed a second complaint and order to show cause seeking guardianship of the children on June 12, 2013. The next day, the FN litigation was dismissed, and an order to show cause hearing was held on the Division's complaint.
Following a compliance hearing in September 2013, the judge stated that both defendants were making "positive progress in their respective programs and that visitation [was] going well." The judge ordered updated psychological evaluations of defendants, and noted that if the results were positive, unsupervised visitation among the family could begin.
Evaluations were conducted by Dr. Antonio Burr on November 5, 2013. The doctor recommended in a preliminary letter that unsupervised visitation commence. Further, Dr. Burr recommended three or four successful unsupervised visits before overnight visitation was to begin. Subsequent to the doctor's recommendation, at a November 21, 2013 hearing, the judge ordered unsupervised visitation for the family. Defendants were to continue attending services and treatments.
In Dr. Burr's psychological report, he found Jessica's thoughts were unorganized, disjointed, and sometimes illogical, and noted that while Jessica suffered from a decreased capacity due to mental illness, it was unlikely she was a risk of abuse or neglect to her children. As to Scott, Dr. Burr noted Scott's acknowledgment of Jessica's mental health issues, but expressed concern that Scott may revert to his previous passive behavior and rely on Jessica to care for the children exclusively on her own. Although Dr. Burr supported reunification based upon defendants' compliance with treatment and a viable parenting plan being provided to the Division, he did not recommend reunification with Jessica if she was in the role of primary parent.
Unsupervised visits commenced in November 2013. A bonding evaluation noted that defendants observed the children without interacting with them, and only Joseph sought defendants' attention. On December 21, 2013, the Division received a referral following an unsupervised, overnight visit. The referral alleged that Scott hit Joseph with an open hand, that there were verbal altercations between defendants, and that Jack had been hit in the face with a pellet from a BB gun. It was also reported that Scott may have been consuming alcohol. Scott admitted hitting Joseph on the hand as a form of discipline but noted he would use alternate methods of discipline in the future.
On February 6, 2014, at a second permanency hearing, the Division's revised plan of reunification was approved based upon a finding that both defendants had been compliant with services. The FN docket was reopened, and the FG litigation was terminated. Compliance review hearings were held on March 20 and July 23, 2014. At the March 20 hearing, the Division requested defendants' participation in couples counseling and family therapy, which thereafter began on April 10, 2014, with Dr. Carolina Mendez. The custody of the children was continued with the Division. At the July 23 hearing, the Division entered into evidence a July 10, 2014 evaluation of defendants by Dr. Frank J. Dyer, which recommended against reunification of the family.
A permanency hearing was held on September 16, 2014. The judge approved the Division's plan for adoption based upon Dr. Dyer's expert report finding neither parent had the capacity to parent the children. The judge found that Jessica had not fully complied with her mental health program and had recently been psychiatrically hospitalized. The judge also found Scott was unemployed, both parents had not obtained suitable housing, and they were making little progress with their couples counseling and family therapy sessions with Dr. Mendez.
VI.
On October 28, 2014, the Division filed a third complaint for guardianship. The FN litigation was dismissed on November 12, 2014. The guardianship trial commenced on May 29, 2015. Three witnesses were presented on behalf of the Division: caseworker Diana Trail, Division supervisor Cheri Braithwaite, and Dr. Dyer. Defendants, represented by counsel, testified on their own behalf. Neither defendant provided expert testimony or documentary evidence. The law guardian supported termination of parental rights. At the conclusion of the trial, the judge issued an oral decision finding that the Division had met all four prongs of the best interest test under N.J.S.A. 30:4C-15.1 by clear and convincing evidence. A judgment of guardianship and termination of parental rights was entered. Defendants each filed a notice of appeal on June 18, 2015.
Since the decision, Jack and Jacob continue to reside with their resource parents, who are committed to adopting the children. Joseph has been moved to a new home as of October 27, 2015, where his new resource parents are committed to adopting him as well.
Scott raises the following arguments on appeal:
[POINT I]
THE MAY 29, 2015, JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED TO PREVENT A MISCARRIAGE OF JUSTICE BECAUSE THE TRIAL COURT WAS SO CLEARLY MISTAKEN IN ITS LEGAL CONCLUSIONS THAT THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL MET ALL FOUR PRONGS OF
N.J.S.A. 30:4C-15.1(a) "BEST INTEREST OF THE CHILD" TEST: THE CHILDREN'S HEALTH OR DEVELOPMENT HAD BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP, OR THAT [SCOTT] HAS UNWILLING OR UNABLE TO ELIMINATE HARM, OR THAT IT PROVIDED REASONABLE EFFORTS TO EFFECTUAL REUNIFICATION, OR THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
A. The evidence that the Division presented at the guardianship trial did not meet the "clear and convincing" standard and therefore did not support the trial court's legal conclusion that the child's safety, health or development has been or will continue to be endangered by the parental relationship.
B. The evidence that the Division presented at the guardianship trial did not meet the "clear and convincing" standard and therefore did not support the trial court's legal conclusion that [Scott] was unwilling or unable to eliminate harm or is unable or unwilling to provide a safe and stable home.
C. The evidence that the Division presented at the guardianship trial did not meet the "clear and convincing" standard and therefore did not support the trial court's legal conclusion that the Division made reasonable efforts to provide services to help the circumstances which led to the removal of the children and that the court considered alternatives to termination of parental rights.
D. The evidence that the Division presented at the guardianship trial did not meet the "clear and convincing" standard and therefore did not support the trial court's legal conclusion that termination of parental rights will not do more harm than good.
[POINT II]
IN THE INTEREST OF JUSTICE, POST-TRIAL EVENTS WARRANT A REMAND TO THE TRIAL JUDGE FOR RECONSIDERATION OF THE MAY 29, 2015 JUDGMENT OF GUARDIANSHIP.
[POINT III]
THE DIVISION MUST REMOVE THE NAMES OF [SCOTT] AND [JESSICA] FROM THE CHILD ABUSE REGISTRY AS THE AUGUST 7, 2012 FINDING OF ABUSE AND NEGLECT ORDER WAS REVERSED ON JUNE 25, 2012.
Scott further contends in his reply brief:
[POINT IV]
THE DIVISION'S ACTIONS AND INACTIONS CONTRIBUTED TO FORMING THE BOND BETWEEN [JACK] AND [JACOB] WITH THEIR RESPECTIVE RESOURCE PARENTS AND THERE IS NO COMPARATIVE BOND ASSESSMENT WITH [JOSEPH] WITH HIS CURRENT RESOURCE PARENT TO REFUTE HIS STRONG ATTACHMENT TO SCOTT, THEREFORE THE CHILDREN'S INTEREST[S] WILL NOT BE SERVED BY TERMINATING [SCOTT'S] PARENTAL RIGHTS.
Jessica raises the following points on appeal:
[POINT I]
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A DETERMINATION THAT DCPP MET THE HEAVY BURDEN OF PROOF APPLICABLE TO ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a) TO TERMINATE PARENTAL RIGHTS.
A. The order terminating parental rights must be reversed where a trial judge and DCPP service providers relied on findings of abuse and neglect that this court reversed, and where the trial judge failed to provide adequate findings and legal conclusions in violation of [Rule] 1:7-4(a).
B. Clear and convincing evidence did not exist that [Jessica] harmed her children or that the children would be endangered by the parental relationship because the trial court did not review the full trial record in making its decision and the court's findings were based on its August 2012 findings of abuse and neglect reversed by this court.
C. Clear and convincing evidence did not exist that [Jessica] is unwilling or unable to eliminate harm facing her sons or to provide them with a safe and stable home because the trial court failed to consider that [Jessica] presented realistic plans for her sons, and disregarded [Jessica's] efforts to form a stable foundation by attending required DCPP services.
D. The evidence was insufficient to find DCPP made reasonable efforts to provide services to correct circumstances which led to the children's placement, as DCPP failed to provide proper counseling
and visitation services, [and] created a divide in the family rather than a focus on reunification.
E. Doubt and uncertainty, not clear and convincing evidence, existed as to whether termination will not do more harm than good because a trial court fully failed to consider the value of the children's continuing relationship with their mother, relied on stale bonding evaluations untethered to record facts, and discounted the splintering of a family.
Jessica also argues in her reply brief:
A. DCPP and the law guardian, like the trial court, are wrong that the children were endangered by their relationship with [Jessica] and that Dr. Dyer's evaluation and the trial court's decision are based on alleged abuse and neglect that this court found did not occur.
B. To claim that [Jessica] was unwilling and unable to eliminate harm to her children or to provide them with a safe and stable home respondents disregarded evidence that she complied with services and successfully cared for her children.
C. Respondents minimize the lack of specific services tailored to the family's needs, as well as deficient and damaging agency conduct, satisfied that [p]rong [three] can be sustained with a generic inventory of services that here did
not warrant a finding of reasonable efforts.
D. DCPP failed to prove that termination of parental rights will not do more harm than good where one child expressed that he wanted to live with his mother, another was sad at the end of visits with his parents, and the court relied on a stale evaluation and improperly truncated its [p]rong [four] inquiry.
VII.
Parents have a fundamental, constitutionally protected right to raise their children, even those who have been placed in foster care. In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). Although the State's authority to act in the place of a parent to protect the welfare of a child may sometimes overcome this constitutional right, such authority "is limited to situations in which the state has demonstrated that the child's parent or custodian is unfit, or the child has been neglected or harmed." Id. at 10 (citations omitted).
The Supreme Court first articulated the best interests standard in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform to the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). The statute provides that the Division must prove:
(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).]
The four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted). The burden of proof is on the Division to establish its case by a clear and convincing evidence standard. Ibid.; see also In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447-48 (2012); N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).
We defer to a trial court's factual findings and credibility determinations based on its hearing of the trial testimony and feel of the case. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
No deference is required if the trial judge's legal 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).
After citing the statutory criteria, the judge held as to the first prong:
[T]his court has the benefit of first Dr. Dyer's testimony, as well as the caseworker Ms. Trail, the adoption worker Ms. Braithwaite, and brief testimony by each of the defendants in this case.
First of all, I would like to point [out] that I thought Dr. Dyer's testimony was extremely credible, very detailed, and [he] provided a very detailed basis for all of his opinions. This was not just based on . . . his review of documents. . . . He had an opportunity to see the children on two separate . . . occasions, [and] had an opportunity to meet with all of the foster families. He had a wealth of information from a lot of sources in coming up with his opinions, and I thought they were extremely credible. I think . . . he gave [a] detailed basis for . . . those opinions, and they all were extremely credible [] under these circumstances. And I really have no other expert testimony to refute anything he said, and his evaluation of the defendants really. It is not only borne out by his testing and by his evaluations, but by the evidence we have had in the case, by the history of this case.
We have a serious issue where we [have] a couple, who has presented as a couple from the very beginning of this case, with a terrible history that these children have gone through of physical abuse, of environmental abuse. Of questions regarding their getting
appropriate food, . . . of the environment, of having furniture, of instability of the housing and economics[,] of a mother who has . . . had terrible mental health issues. I mean it is not her fault, but she . . . has a [] long history of mental illness, hospitalizations. And [a] father [who is] extremely passive, has been dependent on this person who has . . . [a] mental illness, who attacks. I mean they have been together, . . . [they have] a ten-year-old together, and they are still together. . . .The judge continued:
The question is [whether] they are committed as a couple. They rise or fall as the weakest link in that couple. And regardless of the fact that Dr. Dyer says that [Scott] is capable of parenting[] if he had that ideal other partner to help him go through it. Because of his passiveness and his sitting back and letting the other parent care for the children, and letting things go, he is not capable of parenting alone, and clearly he is not capable of parenting with [Jessica].
These children have been through a lot. [T]he things they discuss and the issues that they came . . . into foster care with, the behavior issues they have had . . . . The domestic violence they saw, the abuse, the drinking, . . . all of the things that they were exposed to and talked about, at least the older children. The fact that [Jonathan] may be talking about wanting to go home, and he has not been there in three years. There is a way that children tend to idealize what the situation may have been back or what it could be like. You know [in] three years you kind of forget what it really was when he was back there and what he really went through. And it was not a pretty sight, he was exposed to an awful lot that children that age should not
be exposed to, that should not have to go through. And . . . in this particular case these children were exposed to all these things. They were abused, neglected. They were placed in a situation which children should not be placed in, and that abuse.
And . . . certainly . . . the record is clear that prong one has been met by clear and convincing evidence in this particular case as to both defendants.
I mean there was stuff going on between the two of them, domestic violence, there was drinking, there was a situation where even [Scott] in his best behavior stuck his head in sand and let [Jessica] do whatever she wanted, no matter how crazy it was or what was going on. He did not see that these children were not getting what they need, they were exposed to abuse and neglect. He . . . was as much at fault for the situation, for the environment, for the home situation as [Jessica], because he let it happen. He was there, he should have known anything was [going] on. . . . [T]hey were partners, they were in it together, and he let this go on. So, regardless of the fact that he may not have the same disabilities and problems, he is as much at fault as [Jessica] is in creating the original situation.
The first prong of the best interest standard requires the State to prove by clear and convincing evidence that the child's safety, health, or development has been or will continue to be endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). The Division must prove harm that "threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). "[T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. . . . [T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348.
A child's unfulfilled need for a permanent home can be a continuing harm in itself. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996) (citation omitted) (finding that a child was initially harmed by his parent's inability to adequately care for him and was subject to "continued psychological damage because of his need for a permanent home and identity"). In addition, parental unfitness may be found where a parent is "unable or unwilling to prevent harm to the child irrespective of the source of the harm." M.M., supra, 189 N.J. at 289 (citing N.J.S.A. 30:4C-15.1(a)(2)); see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Thus, even if the harm caused or threatened by the parent is not attributable to purposeful conduct, termination of parental rights may be warranted. A.G., supra, 344 N.J. Super. at 440. A parent's inability to understand "the basic requirements for parenting" jeopardizes a child's safety, health, and development. Id. at 436.
Here, as evident from the proofs provided in the record and, in particular, Dr. Dyer's unrefuted testimony, we conclude that the Division provided sufficient credible evidence to satisfy the first prong by clear and convincing evidence. It is undisputed that Jessica suffers from debilitating mental health issues that are beyond her ability to comprehend. Jessica has both failed to attend required services and to take her medication as prescribed. The judge's decision was premised in large part by his finding that Jessica's untreated mental condition negatively impacted upon her parenting capabilities. In addition, the judge found the environment to which the children were exposed including domestic violence, alcohol abuse, and housing instability, placed the children's safety, health, and welfare in jeopardy. These findings are supported in the record.
Similarly, Scott's lack of parenting capabilities was addressed by Dr. Dyer. The judge found that Scott, due to his passivity, depression, and inability to live a life free of Jessica placed the children at risk for future harm. This finding is likewise supported in the record.
Defendants argue that the judge's consideration of his prior abuse and neglect finding was improper. In essence, defendants argue that since the abuse and neglect determination, a Title 9 action, was reversed by this court, any reference to same in the guardianship action was erroneous. We disagree. While the judge referred to "abuse and neglect" and the bases therefore from the Title 9 litigation, he relied on the evidence gathered during the Title 30 litigation to conclude that the first prong was satisfied. In particular, the judge referenced the testimony of Dr. Dyer as a significant component of his findings.
Further, we reject defendants' argument that the information gathered as a result of the Division's investigation prior to the Title 9 finding should have been excluded for the purpose of the Title 30 action. The Title 9 and Title 30 actions are distinct, and the latter also grants jurisdiction to the Family Part to evaluate the child's best interest. New Jersey Department of Children & Families v. I.S., 214 N.J. 8, 38-39 (2013); see also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 555 (1994) ("Abuse-or-neglect and termination proceedings are brought under separate statutory schemes, require different burdens of proof, and allow for different remedies."); M.M., supra, 189 N.J. at 292. ("[U]nlike Title 9 inquiries, a parent's fitness is not the touchstone under the best-interests standard [of Title 30]. Rather[,] the court is obligated to assess the best interest of the child." (citation omitted)); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013) ("Title 30 guardianship cases . . . often address long-term problems that affect a child's welfare. Title 9, by contrast, allows for immediate intervention when a single instance of conduct harms or threatens substantial harm to a child."). Reversal of the Title 9 order did not negate the relevance of the evidence for purposes of the Title 30 proceedings that followed.
Although physical and sexual abuse are "[p]aramount examples" of harm, A.W., supra, 103 N.J. at 604, they are by no means exclusive. Others include untreated mental illness that poses a risk to the child, F.M., supra, 211 N.J. at 451, the inability to provide a safe or stable home for the child, N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013), or the failure to understand or provide for a child's needs because of one's own emotional or psychological struggles, N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 481-82 (App. Div. 2012). "The trial court . . . must consider the potential for serious psychological damage to the child." A.W., supra, 103 N.J. at 605 (citing Sorentino v. Family and Children's Soc'y., 72 N.J. 127, 131-32(1976)). The judge's findings in this case fit within these categories of serious risks of future harm to the child determined by evidence of defendants' current deficiencies as parents.
The Division and the court do not have to wait until the child is irreparably harmed before taking action to protect her. F.M., supra, 211 N.J. at 449. Defendant argues the court may intervene before a child is irreparably harmed, but not before there is an actual physical or psychological harm. The Supreme Court stated:
Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The trial court found that a delay in establishing a stable and permanent home will cause home to both these children. The lack of a permanent, safe, and stable home has already engendered significant harm to C.H. There is every indication that similar harm may befall R.H.
[In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citations omitted).]
The judge considered both actual harm that already occurred and prospective harm before it occurred. There was substantial credible evidence to support the judge's conclusion that the children's safety, health, and development would be endangered by a continuing parental relationship with defendants. A continued threat of harm existed because defendants were unstable and did not provide a reliable or safe home for raising the children, and they showed no ability or inclination to become more responsible parents.
The judge held as to the second prong:
[T]he Division tried to get [Scott] (sic) to be perhaps the linchpin of getting these children back together for a time. There was an attempt at reunification, but then they
lost their apartment, [Scott] allowed [Jessica] to . . . [see] the children unsupervised, he violated the order. [Scott] was clearly incapable of parenting alone, and relying on [Jessica] really undermined the Division's plans to try and reunify these children. And he . . . has not complied with all the services. I do not really see any evidence that he completed the drug treatment, but I am not saying that is even an issue at this particular point. The Division has not raised that as really being an issue. But not finishing the other services, not going for all the counseling, not getting the couples counseling completed, not getting the family counseling.
. . . .
I mean the defendants are arguing well, you should have gotten a different doctor. Unfortunately, we have a situation [where] [Scott] is someone of an enabler, passive, not able to really parent on his own. And we have another parent who is incapable because of certain disabilities . . . mental disabilities that make it really incapable for her to realize and be rational about caring for these children. And . . . the psychiatric reports really substantiate. Her testimony also raised a lot of issues. We have a mother who has no idea what grade the kids are in, . . . whether they passed or not[,] what school they go to[,] [and] what is going on with these kids. I mean you are seeing them every week, how do you [not know?] Hey, what is going on in school? What grade are you in? Even the visitation[,] whether it be one hour or three hours or a half an hour, somehow a parent should know what grade their child is in. If they talk to them for five minutes, I think they should know. A month they should know what grade they are in. Clearly, unfortunately, [Jessica] does not have an
understanding of reality in this particular case.
Her testimony that she has some medical certificate. I mean some of it was not really credible at all with regard to her testimony. She has disabilities . . . and I do not know whether she is compliant with [] Rutgers Health — Behavior Health or not, I really have no idea. Unfortunately, [Jessica] was unable to produce any records of her attendance, to produce any documents from any of her doctors that she has improved to the point that she could parent. She has not come up with an expert report that says she is capable of parenting, nor has [Scott].
And I found Dr. Dyer's testimony to be extremely credible with regard to the fact that he found that neither is capable of parenting, and together perhaps they are even worse than individually to parent. And not only are they talking about parenting, they are talking about parenting three children that have not been in their care [for] three years; one of which, the youngest, . . . probably has no recollection of living or being with his parents, [as] he was taken away when he was [one]. And we have a situation where these children are growing up, they need permanency. They have behavioral issues, they have problems, and . . . I believe Dr. Dyer's testimony was extremely credible that neither of these parents are capable of parenting, and together they do not improve their chances of being able to parent.
"The second prong of the statutory standard relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. The Division may satisfy this prong by demonstrating the parent is "'unwilling or unable to eliminate the harm' that has endangered the child's health and development." Ibid. (quoting N.J.S.A. 30:4C-15.1(a)(2)). Alternatively, this prong is proved if the Division establishes 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. "In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." A.G., supra, 344 N.J. Super. at 434.
Under the first alternative, the "inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Thus, the focus of the inquiry is to determine whether the child will suffer substantially from a lack of stability and permanent placement as well as from the disruption of his or her bond with the foster parents. Id. at 363.
In addressing this prong, however, judges must be "cognizant of New Jersey's strong public policy in favor of permanency," which requires consideration of "the child's age, [his or her] overall health and development, and the realistic likelihood that the parent will be capable of caring for the child in the near future." Id. at 357. "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).
Here, the evidence clearly and convincingly established that Jessica was unable to care for the children and would be unable to do so for the foreseeable future. This was so despite the array of services provided to her by the Division. Jessica failed to attend the services and was generally uncooperative. She demonstrated lack of insight into the severity of her mental condition by her repeated failure to take prescribed medication. As the Division points out, Dr. Dyer determined that due to her mental health issues, Jessica was not capable of caring for the children. There was no competent evidence presented by Jessica to the contrary.
Scott also failed to demonstrate his parenting capability aside from completing a substance abuse class and a parenting skills class over the three-year period. He failed to obtain a stable living situation, to attend domestic violence counseling and aftercare classes for his substance abuse issues or to complete an English as a Second Language (ESL) course to alleviate the language barrier. His several absences from therapy resulted in Dr. Mendez discontinuing the couples counseling and family therapy sessions altogether. While Scott acknowledged Jessica's mental health issues, he did not present a viable plan to the Division over the three-year period to raise the children on his own. Dr. Dyer's testimony that Scott was an unfit parent due to his passivity and other significant deficiencies was not refuted.
Concerning whether a delay in placement will further harm the children, we note the three-year passage of time from the removal of the children. During this three-year period, the Division moved for guardianship on two occasions but later dismissed the actions to allow for defendants to avail themselves of additional services as part of a reunification plan. Though conscientiously implemented by the Division, the plan failed to produce any evidence that reunification would succeed. In sum, the evidence clearly and convincingly supported the judge's findings as to the second prong.
The judge held as to the third prong:
[A]s I indicated before[,] reasonable efforts does not mean success, reasonable efforts is presenting those . . . services to the families. What they do with them, whether they complete them or whether or not they get any benefit [from] them is outside the Division's control. They can only present those services. And I believe they have presented numerous documents and testimony that these services were provided to the defendants, . . . and they also tried to assess relatives and friends. There were — apparently . . . three people that were
proposed, none of which . . . panned out; none of which indicated that they were willing to care of any of the children involved here.
I am satisfied these three prongs have been met[.] I do not think there is any question about it.
The third prong requires an evaluation of whether the Division "made reasonable efforts to provide services to help the parent" remedy the circumstances that led to the removal of the children from the home. N.J.S.A. 30:4C-15.1(a)(3). Also, the court must consider alternatives to the termination of parental rights. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011); N.J.S.A. 30:4C-12.1.
Reasonable efforts will vary with the circumstances. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007). This factor requires the Division to make diligent efforts to make it possible to reunite the family. K.H.O., supra, 161 N.J. at 354. Such efforts include but are not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) providing services at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.The emphasis is placed upon the steps taken by the Division toward the goal of reunification. K.H.O., supra, 161 N.J. at 354. It is critical that the Division "encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family." D.M.H., supra, 161 N.J. at 390. However, the diligence of the Division's efforts is not measured by whether those efforts were successful. Ibid. Indeed, "even [the Division's] best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452.
[N.J.S.A. 30:4C-15.1(c).]
Here, there is sufficient credible evidence in the record demonstrating that "reasonable efforts" were made by the Division to reunify the family. The Division provided the family with parent aide services, case plans, several psychiatric and psychological evaluations, parenting skills classes, couples counseling, family therapy sessions, substance abuse treatments, visitation (both supervised and unsupervised) and financial support, among a number of other services over the years. We are satisfied from our review of the record that the Division presented clear and convincing evidence to satisfy the third prong.
Notwithstanding, we note that the judge's findings relative to the third prong were general rather than particularized. The judge's reliance on the proofs in the record, without more, might have required a remand for additional fact finding had the record not been replete with steps taken by the Division toward reunification, including its dismissal of the two prior guardianship actions.
In finding that the fourth prong of the best interests test was satisfied by clear and convincing evidence, the judge held:
Well, [Jacob] does not want any part of his parents. It seems clear from the testimony[,] from the way he goes to visitation, from his testimony to . . . Dr. Dyer, to his physical [behavior] when he goes for visitation[,] he really has no interest in being reunited with his parents. He has nothing but negative thoughts about it, it is a negative thing for him even to think about it. He does not want to[,] and clearly termination of parental rights could not cause any more . . . harm. He needs the permanency, he needs to be with the foster family he is in, who are committed to him, and hopefully he can get that permanency that he needs.
With regard to [Jack], he is ambiguous. I mean sure, he is older and he probably remembers more years of being with his parents and being with his mother and he remembers those years more. As I indicated before, he may have an idealized recollection of what that was like, compared to what the Division's records indicate was really happening at that time. But he clearly seems secure and attached. I do believe the bonding evaluations [show] he was secured and attached to his current caretaker. And the bond with his parents is very tenuous, he has not been
with them for three years. And I think he . . . is torn, he — obviously he has some what you might call residual bonding or whatever you might call it. I mean he remembers being with his parents, and certainly he recognizes that they are his parents. But I am satisfied that the caretakers in this particular case should more than adequately . . . be able to eliminate or mitigate any harm cause[d] by termination of parental rights. His only possibility of permanency and permanency being adoption[,] would be to terminate parental rights. And he is entitled to permanency, and he has a strong bond with the current caretaker.
[Joseph] is the youngest, it is a shame that he is in [the] position that he is where the current caretaker is ambivalent about or at least indicates [she] is not wishing to care for him. But the Division is looking into the possibility, and I think they are pushing to try to get [Joseph] with his brother [Jacob] in the same foster home. That would certainly be a very good result. But you have [to] also understand that these boys have not been together for a long time. They have basically thrived very well in their current foster care without living together. I hope that you know the Division can continue to maintain contact between [them] regardless of what happens in this case. But they have all lived separately, and they have all thrived pretty much in their current foster cares, and they are doing well. I think [Joseph] would do well in his current foster care. I have no reason to believe that he could not do well . . . if he was living with [Jacob], or for that matter another adoptive home that can see to his needs. He is young, he probably has very little recollection of really living with his parents. Whatever bond he has with them is kind of a — as Dr. Dyer said, it is a familiarity, he sees them regularly, they play with him, it is someone
[to play] with. . . . [H]e probably has no recollection of living . . . with the defendants. His parents never really cared for him during his . . . lifetime that he remembers. . . .
I am satisfied . . . on a first blush having [fifteen-to-twenty] [] potential adoptive homes. I mean a [four-year-old] with maybe some . . . behavioral issues, and . . . [he] does not seem to have any other major medical or special needs. In this particular case, a [four-year-old] boy — would seem to be an extremely adoptable . . . child from the testimony I have heard. We have [twenty] matches to begin with . . . without even going beyond the State of New Jersey or anything else, that seems like an awful lot of potential homes to [adopt] in. As well as the fact that . . . [Jacob's] foster family is willing to adopt . . . [and] seems to be interested in adoption and would like to have him placed there.
So, . . . the possibilities of adoption in this particular case are extremely great . . . . This is not an older child with extreme needs that . . . might be difficult for placement[;] there does not seem to be any reason why he could not find a secure permanent placement.
And for all those reasons I feel that prong four has been met [by] clear and convincing [evidence] . . . that it would not do more harm than good to terminate the parental rights. These children need permanency, they have been at a placement for over three years, they need a place where they can call home and know that they have a permanent place.
I am satisfied that the Division has proven all four prongs by clear and convincing evidence. I will grant the Division
guardianship of [Jack], [Jacob,] and [Joseph], and I will terminate the parental rights of [Jessica] and [Scott]. And I will also approve the permanency plan of termination of parental rights followed by adoption for the reasons I have really already given on the record in my decision in this case.
The focus of the fourth prong is on the effect of termination upon the child. G.L., supra, 191 N.J. at 609. This prong serves as a failsafe against termination even where the remaining standards have been met. Ibid. To satisfy its statutory burden of proof as to this prong, the State is not required to show that termination will not result in any harm to the children. K.H.O., supra, 161 N.J. at 355. Rather, the objective under the fourth prong is to identify "'the least harmful or least detrimental alternative.'" A.W., supra, 103 N.J. at 616. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). Thus, if a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 608.
Satisfaction of the fourth prong requires the State to "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19). Courts must also consider "[a] child's need for permanency." Ibid. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453. Because of the importance of permanence to a child's well-being and development, limits have been placed "on the amount of time a parent may have to correct conditions at home in anticipation of reunification." K.H.O., supra, 161 N.J. at 358.
The fact that the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005). However, "[w]hen a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home," the termination of parental rights will not do more harm than good. E.P., supra, 196 N.J. at 108. Moreover, if the separation of the child from the foster parent will cause serious harm, then the fourth prong is fulfilled. Ibid.
The Division demonstrated by clear and convincing evidence that termination of defendants' parental rights will not do more harm than good. The Division presented testimony from Dr. Dyer, an expert deemed highly credible by the judge, who had an opportunity to evaluate the three children in the presence of both defendants and the children's respective resource parents. Following these evaluations, Dr. Dyer found that terminating the parental rights of defendants as to Jack and Jacob, in particular, would not do more harm than good, as the children's respective resource parents would be able to mitigate any losses the children may experience. By contrast, Dr. Dyer testified that the same could not be said if the relationship between the children and their resource parents were terminated, due to defendants' inability to sufficiently monitor and nurture the children moving forward. As to Joseph, Dr. Dyer concluded that his relationship to his parents was one of a tangential nature, where the termination of defendants' parental rights would have no serious or lasting impact of him. Again, these findings were well supported in the record.
In sum, given our review of the record and the deferential standard we accord of that review, we find no basis to conclude that the judgment terminating defendants' parental rights was erroneous.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION