Opinion
DOCKET NO. A-2156-13T1 DOCKET NO. A-2157-13T1
02-18-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.E. and M.C., Sr., Defendant-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF M.X.C., K.M.C. and M.T.C., Jr., minors.
Joseph E. Krakora, Public Defender, attorney for appellant J.E. (Ruth Harrigan, Designated Counsel and on the brief). Jospeh E. Krakora, Public Defender, attorney for appellant M.C., Sr. (Albert M. Alfonso, Designated Counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Melissa Medoway, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for minors (Todd Wilson, Designated Counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-32-13. Joseph E. Krakora, Public Defender, attorney for appellant J.E. (Ruth Harrigan, Designated Counsel and on the brief). Jospeh E. Krakora, Public Defender, attorney for appellant M.C., Sr. (Albert M. Alfonso, Designated Counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Melissa Medoway, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for minors (Todd Wilson, Designated Counsel and on the brief). PER CURIAM
In this consolidated appeal, the mother, J.E., and father, M.C., Sr. (Sr.), appeal from the December 19, 2013 order terminating their parental rights to their children: M.T.C., Jr. (Jr.), a boy born in 2004; M.X.C., a boy born in 2006; and K.M.C., a girl born in 2007. The Law Guardian, on behalf of all three children, urges us to affirm. After reviewing the record in light of the contentions advanced by both parents on appeal, we affirm substantially for the reasons expressed by the judge in his comprehensive oral opinion of December 19, 2013.
We use initials for all parties to preserve the confidentiality of the children.
I
The Division of Child Protection and Permanency (Division) first became involved with the family in September 2006, when it received allegations of neglect and drug use by J.E. Thereafter, the Division provided supervision and services to the family following a referral from the Paterson Police Department, reporting a domestic violence incident between the parents that was witnessed by the children.
Subsequently, both parents tested positive for illegal substances. The Division executed an emergency removal of the children in January 2007. J.E. became drug free and compliant with services, and the children were returned to her in July 2007, more than six months later.
From April 2008 through October 2009, the Division continued to receive referrals of neglect. These referrals included allegations of physical child abuse, neglect, domestic violence, Sr.'s alcohol abuse and J.E.'s drug abuse. In September 2009, a referent told the Division that Sr. had been incarcerated for terroristic threats. He later pled guilty to threatening to kill J.E., which resulted in a sentence of 180 days in jail and two years of probation, conditioned on no contact with J.E. The Division referred J.E. to substance abuse counseling.
After determining that Jr. had missed forty days of school, in March 2011, the Division filed a second complaint seeking the care and supervision of the children. The court granted the Division's request and entered an order restraining Sr. from having unsupervised visitation with the children. Two months later, the Division discovered that Sr. was watching the children in J.E.'s absence and living with the family, in violation of the terms of his probation and the court order restraining his unsupervised contact with the children. As a result of violating the terms of his probation by having contact with the victim, Sr. was sentenced to three years in prison. The children were removed and placed in foster care.
Subsequently, at a fact-finding hearing, J.E. stipulated that she had neglected her children by allowing Sr. to take Jr. to school in violation of the court order. The Division provided J.E. with various domestic violence, substance abuse, and parenting services, as well as supervised visitations. In March 2012, J.E. missed two weeks of visits, therapy, and parenting skills classes when she went on a trip to Puerto Rico with J.C., her boyfriend, who was also abusive towards her. Nonetheless, a month later, almost one year after their removal, the children were returned to J.E.'s physical care, while the Division retained legal custody. J.E. was residing in a women's shelter, where the children lived with her.
It was later discovered that two of the children were sexually assaulted by another child while in this shelter.
In October 2012, after repeatedly reporting that she felt overwhelmed, J.E. contacted the Division and stated that she was unable to care for her children. She took the children to the Division office, after which the children were placed in foster care for the third time.
The children were devastated by their mother's decision to return them to the Division. They had been in her care for only five months. They articulated that their mother did not love them and did not want them.
J.E. participated in supervised visits. She received a psychiatric evaluation in which she was diagnosed with major depressive disorder and a personality disorder. Counseling, therapy, and medication were recommended to treat these conditions; J.E. failed to follow up on the recommended medication monitoring.
Sr., who was released from prison a few months after the children were removed from their mother's care, was psychologically evaluated. The psychologist determined that he failed to accept responsibility for his anger, which placed him at risk for repeating domestic abuse and criminal behavior. On the same day as a second psychological evaluation, Sr. tested positive for alcohol. The psychologist "observed a slight odor of alcohol" and expressed concern that Sr. was not attending A.A. meetings or complying with any services recommended to him during his previous evaluation. His failure to admit alcohol abuse or anger issues made it unlikely he would remediate the problems. The psychologist's report recommended that the Division seek termination of Sr.'s parental rights because he was incapable of providing his children with a safe and stable environment. The psychologist opined that reunifying the children with him would not benefit them, but rather could cause "severe and enduring emotional harm."
Bonding evaluations with the children revealed that the oldest child had a secure bond with both J.E. and his long-term foster mother, who wished to adopt him. The younger two children had an insecure attachment with J.E. J.E. said that if the children were returned to her, she would trust the children with Sr., who she said was not an abusive person, was not drinking and was a "perfect" father. She said the children were afraid of him, but she did not know why.
The younger children had been placed in a new prospective adoptive home during the trial. Because of the recent placement, no bonding evaluation with these foster parents was performed.
Psychological evaluations of the children revealed that the children had suffered significant damage as a result of the failed reunifications; nonetheless, they expressed that they loved J.E. The two boys also revealed that they both had been sexually abused by another child while living at the shelter with their mother.
At the five-day guardianship trial, J.E. and Sr. presented no witnesses, nor did they testify. The judge gave a thorough oral opinion at the conclusion of the trial.
Regarding J.E., as to prong one of the four-prong statutory test found in N.J.S.A. 30:4C-15.1(a), the judge found that the children were harmed by the multiple removals and domestic violence in the home. As to prong two, the judge found that J.E. was incapable of eliminating the harm due to her psychiatric condition, having been diagnosed with major depressive disorder and borderline personality disorder. According to the Division's credible expert, these conditions required long-term treatment and therapy. With regard to prong three, the judge found that the Division made reasonable efforts to provide services, and no relative resource placements were available. As to prong four, the judge noted that although no foster parent bonding evaluation could be performed as to the youngest two children because of their recent placement, the Division "was optimistic." The judge found that Jr. was securely bonded to both his mother and his foster mother, but that the foster mother could ameliorate any harm from the termination of his mother's parental rights, whereas J.E. could not reduce the harm that would be caused by removing Jr. from the foster mother's care. The judge found that this evidence satisfied prong four.
(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.
Regarding Sr., as to the first prong, the judge found that Sr. harmed the children by taking himself out of their lives when he committed a violation of probation that Sr. knew would cause him to go to prison. The judge found that Sr.'s incarceration constituted harm to the children since Sr. was unavailable to prevent foster placement.
As to the second prong, the judge found that Sr. did not comply with court-ordered services and refused to acknowledge his substance abuse and domestic violence issues. The judge accepted the Division's psychologist's opinion that Sr. could not parent safely by virtue of his noncompliance with services and refusal to acknowledge his violence and substance abuse issues.
As to the third prong, the judge found that the Division provided reasonable efforts towards reunification, which included a psychological evaluation, substance abuse evaluations, and batterers' counseling. The judge stated that the Division had reasonably focused most of its services on J.E. instead of Sr. because she was the primary custodial parent and Sr. was incarcerated.
As to the fourth prong, the judge found that termination of Sr.'s parental rights would not do the children more harm than good because the expert found that they would suffer severe enduring harm if they were placed with Sr. and would suffer no harm if his rights were terminated.
On appeal, J.E. raises the following issues:
POINT I
SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE BEST INTERESTS TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
A. THE COURT'S FINDINGS THAT J.E. WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING THE CHILDREN AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS.
B. DCPP FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT FAILED TO PROVIDE SERVICES THAT WERE REASONABLE UNDER ALL THE CIRCUMSTANCES.Sr. raises the following issues in his appeal:
C. J.E. IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENSE THE ABILITY TO CONDUCT A BONDING EVALUATION WHICH DIRECTLY ADDRESSES THE LEGAL STANDARDS THE TRIAL
COURT MUST CONSIDER UNDER N.J.S.A. 30:4C-15.1.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING [SR.] CONTACT WITH HIS CHILDREN THUS EFFECTIVELY TERMINATING HIS PARENTAL RIGHTS PRIOR TO TRIAL AND PREVENTING THE DIVISION FROM PERFORMING ITS REQUIRED REASONABLE EFFORTS TOWARDS REUNIFICATION.
POINT III
THE DIVISION FAILED TO PROVIDE REASONABLE EFFORTS TOWARDS REUNIFICATION.
POINT IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENSE COUNSEL THE ABILITY TO EFFECTIVELY CROSS-EXAMINE THE DIVISION'S WITNESS DUE TO THE COURT'S MISSTATEMENT OF LAW.
POINT V
THERE WAS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT [SR.] WAS UNWILLING AND UNABLE TO PARENT HIS CHILD.
Although we affirm substantially on the basis of the trial judge's opinion, we add the following comments concerning the arguments raised by Sr. in Points I, II and IV of his appeal, objecting to the denial of a bonding evaluation, visitation immediately prior to trial, and cross-examination of a Division witness.
II
Sr.'s request for a bonding evaluation by his own expert was denied by the court. No bonding evaluation was presented by the Division. Comparative bonding evaluations, measuring the strength of the bond between the child and the biological parent compared to the bond of the child with the foster parent, are generally needed prior to the termination of parental rights. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 436-37 (App. Div. 2009). Here, the judge agreed with the Division that a bonding evaluation was potentially harmful to the children and was unnecessary because the children were known to be afraid of their father and had not had contact with him for a long time.
No expert opined, however, that a bonding evaluation could not be done in a safe manner, perhaps in the courthouse or with the Division social worker as well as the expert in the room. Given the father's constitutional right to parent his children, In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), we do not approve the denial of a parent's opportunity to defend himself by way of expert testimony, absent specific evidence that such an evaluation could not be performed in a way so as not to harm the children.
In this particular situation, however, Sr. had been absent due to a substantial period of incarceration, imposed for both violence perpetuated against the children's mother in the presence of the children and a subsequent violation of probation by contact with their mother. Although an insufficient reason in itself for termination of parental rights, incarceration is a material factor bearing on that decision. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555-56 (2014). "Once imprisoned, a parent [has] difficulty performing the 'composite of tasks' associated with parenthood and cannot continue to undertake or to share the daily responsibilities of raising a child . . . ." In re Adoption of Children by L.A.S., 134 N.J. 127, 138-39 (1993) (citing N.J.S.A. 9:6-1). A parent's imprisonment substantially hampers "[t]he ability to provide significant nurturing and to maintain an emotional relationship with the child . . . ." Id. at 139 (citing N.J.S.A. 9:3-46(a)). When that incarceration occurs because of behavior perpetrated against the children's mother in the presence of the children, which causes the children to fear their father, the incarceration is also evidence of harm caused directly to the children. See R.G., supra, 217 N.J. at 555 (stating "'the nature of the underlying crime giving rise to incarceration is relevant in determining whether parental rights should be terminated, because it may bear on parental unfitness'") (quoting L.A.S., supra, 134 N.J. at 143). Thus, while a Division's expert's recommendation against a bonding evaluation in itself should not result in a denial of that evaluation, in this extremely limited circumstance, we do not view the denial of a bonding evaluation to constitute reversible error.
III
Sr. also argues that he should have been permitted to visit the children after he was released from custody in December 2012. In March 2013, his request for visits was denied, in part, because the Division's expert stated that the children were afraid of him due to the violence they had witnessed. Given Sr.'s absence from the children's lives, the judge stated that this would be a "reintroduction" that would have to be done under the auspices of a therapist, but that the children's therapist's report was not yet available. In addition, the judge expressed concern that reintroduction when a trial concerning termination of Sr.'s parental rights was pending, could be traumatic for the children.
The Division provided Sr. with psychological and substance abuse evaluations as well as an opportunity for counseling. In May 2013, the court noted that the Division's expert had opined that the children would not benefit from resumed contact with their father and that Sr. was noncompliant with services. By then, Sr. was residing in New York, claiming his residence in Brooklyn made it too inconvenient to receive services in New Jersey, even though the Division provided him with free bus passes for the trips.
We do not find that the judge committed reversible error by denying visitation for a limited period of time under these circumstances.
IV
Finally, Sr. claims that his lawyer was prevented from cross-examining the Division's caseworker because the judge sustained an objection regarding reasonable efforts and stated that the Division had no obligation to contact Sr. in prison. Given that the Division acknowledged that it had not provided services to Sr. while he was incarcerated, any error in this particular ruling was harmless. R. 2:10-2. Sr. does not indicate what services should have been supplied to him in prison, and he did not take advantage of those provided after his release.
In light of our obligation to defer to the trial judge's findings of fact, R.G., supra, 217 N.J. at 552-53, we affirm based on the trial judge's detailed opinion as well as the reasons stated above.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION