Opinion
DOCKET NO. A-5217-13T2 DOCKET NO. A-5218-13T2
02-24-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.A. and M.C., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF M.C., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant M.A. (Evelyn F. Garcia, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Eric R. Foley, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for M.C., a minor (Lisa M. Black, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renee Greenberg, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-224-14. Joseph E. Krakora, Public Defender, attorney for appellant M.A. (Evelyn F. Garcia, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Eric R. Foley, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for M.C., a minor (Lisa M. Black, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renee Greenberg, Deputy Attorney General, on the brief). PER CURIAM
M.A. and M.C. separately appeal from a judgment entered by the Family Part on June 23, 2014, terminating their parental rights to their minor child, M.C. We have consolidated the appeals, and address them both in this opinion. We affirm.
Because M.C. and the child have same initials, hereafter we will refer to the child by the fictitious name of Michael.
I.
M.A. gave birth to Michael in August 2006. Shortly thereafter, the Division of Youth and Family Services (the "Division") received a referral indicating that M.A. and the child had tested positive for cocaine, and M.A. had not received any prenatal care. The Division investigated the matter. M.A. admitted that she used cocaine about two or three times per month, and last used the drug about a week before Michael was born. M.C. was identified as the child's father, and the Division learned he had been released from the county jail on bail around the time Michael was born.
In 2012, legislation was enacted which, among other things, changed the Division's name to the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
The Division conducted an emergency removal of the child without a court order, and placed him in a resource home with J.B., the paternal aunt of one of M.A.'s other children, and J.B.'s husband. Shortly thereafter, the Division filed a complaint in the trial court, seeking custody, care and supervision of the child. The court granted the Division's application.
The Division then provided services to M.A. and M.C. Among other things, the Division referred M.A. for inpatient substance abuse treatment at a facility operated by Straight and Narrow, Inc. ("Straight and Narrow"), and in February 2007, Michael was placed there with M.A., as part of its "Mommy and Me" program. M.C. was re-incarcerated in March 2007.
In May 2007, M.A. was discharged from substance abuse treatment for noncompliance, and Michael was returned to the resource home with J.B. and her husband. In December 2007, M.C. was released from jail. The Division referred M.A. and M.C. for additional services. In October 2008, Michael was reunited with M.A. The litigation was dismissed in August 2009.
The Division received another referral in October 2012, which indicated that Michael, who was then six years old, had been found wandering around an apartment building early in the morning looking for M.A. According to the referral, the police had looked through the building and eventually found M.A. under a pile of laundry. She had a bloody nose and was said to be completely disoriented. M.A. was taken to the emergency room of a hospital and Michael was taken to the police station.
The Division investigated the report. M.A. admitted to smoking marijuana and denied using other illegal drugs, until she was confronted with the fact that she had tested positive for cocaine the day before, when she was at the hospital. M.A. also admitted to the occasional use of cocaine, but said she ingested the drug in the bathroom where Michael could not see her. The Division also learned that M.C. was again in jail, having been incarcerated since 2011. The Division again removed Michael on an emergency basis, without a court order, and placed him with J.B. and her husband, where he has remained since.
The Division filed another complaint in the trial court, which determined that the emergent removal of the child was warranted. In February 2013, following a fact-finding hearing, the court determined, by a preponderance of the evidence, that M.A. abused or neglected Michael by using cocaine and marijuana while she was his caretaker, which made her incapable of caring for the child and placed him at substantial risk of harm.
On September 30, 2013, the trial court conducted a permanency hearing, and accepted the Division's plan of termination of parental rights, followed by adoption, due to M.A.'s substance abuse issues and M.C.'s incarceration. On November 14, 2013, the Division filed its guardianship complaint.
The court conducted a trial in the matter in May 2014. The Division presented testimony from its expert, Dr. Robert Miller ("Dr. Miller"), and a Division worker. The Law Guardian presented two witnesses, Dr. Elizabeth Smith ("Dr. Smith"), and J.B., Michael's foster parent. The Law Guardian supported termination of M.A.'s and M.C.'s parental rights, and the adoption of Michael by J.B. and her husband. M.A. presented testimony from Dr. Gerald Figurelli ("Dr. Figurelli"), and Iman Gibson ("Gibson"), the Associate Director of the Woman's Unit at Integrity House, which provides substance abuse treatment. M.C. did not testify, but presented testimony from his brother, D.C.
On June 23, 2014, the trial judge filed a written opinion, finding that the Division had established, by clear and convincing evidence, all four prongs of the best interests test for termination of parental rights under N.J.S.A. 30:4C-15.1(a) with regard to both M.A. and M.C. The judge memorialized her opinion in a written order, which was also filed on June 23, 2014. M.A. and M.C. thereafter filed notices of appeal.
II.
M.A. and M.C. both argue that the trial judge erred by ordering the termination of their parental rights. They maintain that the judge erroneously found that the Division had established all of the criteria for termination of their parental rights with clear and convincing evidence.
We note initially that the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the following criteria are established by clear and convincing evidence:
(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; andOur Supreme Court has noted that, "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
(4) Termination of parental rights will not do more harm than good.
[N. J.S.A. 30:4C-15.1(a).]
The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
Furthermore, factual findings of the Family Part "are entitled to considerable deference[.]" D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we give no "special deference" to the court's "interpretation of the law." Ibid. (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).
A. M.A.'s appeal.
M.A. first argues that the trial judge erred by finding that Michael's "safety, health or development has been or will continue to be endangered by" his relationship with her. N.J.S.A. 30:4C-15.1(a)(1). She contends the Division failed to prove that Michael was harmed by the incident in which he was found walking unattended in the apartment building. She says there was, at the most, a potential for harm because she "possibly" overdosed on drugs after a medical procedure. She contends that the judge's factual findings concerning this incident were based on hearsay.
M.A. also argues that the judge placed "inordinate" weight on the fact that she and Michael tested positive for cocaine when he was born. She says the judge erroneously stated that two of her children were removed from her care before Michael was born. She notes that she had Michael with her at Straight and Narrow for five months, and the Division transferred physical and legal custody of the child to her in October 2008. She says that she had custody of Michael for several years, during which there were no incidents that triggered Division involvement.
We disagree with these arguments. We are convinced that the Division presented sufficient evidence to support the judge's finding that Michael's "safety, health or development" were harmed by his relationship with M.A. Here, the judge found that Michael was harmed by M.A.'s continued substance abuse, including the relapse which led to the child's second removal in 2012.
The judge noted that, during the child's short lifetime, he has been in foster care for almost four years, and M.A. only began to address her long-standing addition to drugs in December 2013. Moreover, M.A. has only been drug-free since November 2013, and she was at an early stage of the treatment program at Integrity House when the case was tried. The record supports the judge's finding that, because of her persistent substance-abuse problem, M.A. had not been able to provide Michael with a safe and stable home, and would not be able to do so in the foreseeable future.
Next, M.A. contends that the Division failed to prove that she was unwilling and/or unable to eliminate the harm to Michael. N.J.S.A. 30:4C-15.1(a)(2). She contends that she had her last relapse six months prior to trial, and Gibson testified that she was receiving specialized, individual treatment at Integrity House. She further argues that her participation in the Integrity House program is "not the behavior of a parent who is unwilling and/or unable to remove the harm that led to the removal of her son." She also argues that the Division failed to prove that the child would suffer serious and enduring harm if removed from his foster parents. Again, we disagree.
Here, there is sufficient credible evidence in the record for the judge's determination that the Division established prong two of the best interests test. The record supports the judge's finding that M.A. was not able to provide Michael with a safe and stable home and would not be able to do so in the foreseeable future. Moreover, all of the experts agreed that "permanency is paramount." The judge noted that M.A. could not provide that permanency to Michael within the foreseeable future.
M.A. further argues that the Division failed to establish prong three of the best interests test because it did not present clear and convincing evidence showing that it considered alternatives to termination of parental rights, as required by N.J.S.A. 30:4C-15.1(a)(3). On this issue, M.A. relies upon Dr. Figurelli's testimony, in which he suggested that M.A. should be permitted to continue her services at Integrity House, and begin a process of reunification. As an alternative, Dr. Figurelli said that M.A. should be afforded an additional three months to see if she could successfully complete her treatment.
M.A. contends that the trial judge erred by failing to accept Dr. Figurelli's suggestions. In her reply brief, M.A. also argues that the Division failed to make reasonable efforts to address the circumstances which led to Michael's removal from M.A.'s care.
We cannot agree with these arguments. We are convinced that there is sufficient evidence in the record to support the judge's finding that the Division's efforts regarding M.A. were reasonable. The record shows that the Division offered M.A. an array of services, including substance abuse evaluations and treatment, psychological evaluations, parenting classes, and visitation. The record established that M.A. did not fully avail herself of the services provided.
Moreover, the trial judge was not required to accept Dr. Figurelli's suggested alternatives to termination of parental rights, particularly since his alternatives required additional time for M.A. to address her long-standing substance abuse problem, and there was no assurance that M.A. would do so successfully. The expert testimony indicated that M.A. was not capable of providing Michael with a safe and stable home, and would not be able to do so within the foreseeable future. As the judge pointed out in her findings on prong two, the child's need for stability and permanency is paramount.
M.A. also contends that the judge erred by finding that termination of her parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). She contends that none of the experts testified that Michael would suffer serious, irreparable harm if removed from his foster parents. She says that Dr. Miller said Michael's attachment to her was insecure, but he "completely ignored" the fact that the child was in her custody for several years and there were "no problems." M.A. also asserts that the judge placed undue reliance upon the foster parents' willingness to allow M.A. and M.C. to remain part of Michael's life.
We are convinced, however, that there is sufficient credible evidence in the record to support the judge's findings on prong four of the best interests test. The judge noted that none of the experts testified that termination of parental rights would do more harm than good. Furthermore, Dr. Miller testified that if M.A.'s parental rights are terminated, Michael will suffer some harm, but the foster parents will be able to address his emotional reactions "and permanency far outweighs" his reactions. The judge observed that Dr. Miller had testified that Michael would suffer significant harm if removed from his foster parents, and M.A. would not be able to alleviate that loss.
We conclude that the record fully supports the judge's conclusion that the Division had clearly and convincingly established all four prongs of the test in N.J.S.A. 30:4C-15.1(a) for termination of M.A.'s parental rights.
B. M.C.'s Appeal.
First, M.C. argues that the judge erred by finding that the Division established the fourth prong of the best interests test, because the Division failed to show that termination of his parental rights will not do more harm than good to Michael. N.J.S.A. 30:4C-15.1(a)(4).
M.C. argues that the judge erred by relying upon Dr. Miller's and Dr. Smith's opinions that he had not bonded with Michael because these experts did not conduct evaluations of his bonds with the child. M.C. further argues that the judge erroneously ignored a report written by Dr. Alison Winston ("Dr. Winston"), one of the professionals retained by the Division. According to that report, Michael had demonstrated "an adequate degree of emotional attachment to his father."
We are convinced, however, that the evidence presented at trial clearly and convincingly established that termination of M.C.'s parental rights to Michael would not do more harm than good. The record indicates that M.C. was absent from Michael's life for four out of eight years due to his incarceration for various offenses, including possession of a controlled dangerous substance, burglary, conspiracy, unlawful possession of a weapon and shoplifting. M.C. was in jail from March 2007 to December 2007. He was again incarcerated from October 2009 to April 2010, and then re-incarcerated in July 2011. Moreover, before he was returned to jail in 2011, M.C. resided in Florida and, during that time, only spoke with Michael on the phone occasionally.
Dr. Miller did not conduct a bonding evaluation of M.C. and Michael because Michael refused to travel to the prison where M.C. was incarcerated. Dr. Miller did, however, conduct a clinical interview with Michael and opined that Michael was indifferent to M.C. Dr. Miller concluded that Michael would suffer harm if removed from his foster parents, and M.C. would not be able to mitigate that harm.
In addition, Dr. Smith testified that if M.C.'s parental rights are terminated, Michael would suffer minimal harm since his foster parents would allow M.C. to maintain contact with his son. Dr. Winston may have commented on Michael's attachment to M.C., but that statement does not detract from the other expert testimony, which the judge accepted and which provided ample support for the judge's conclusion that termination of M.C.'s parental rights to Michael would not do more harm than good.
Next, M.C. argues that the Division failed to establish that it made reasonable efforts towards reunification. He argues that the Division's efforts "were nearly non-existent" and consisted of arranging two visits between M.C. and Michael while M.C. was in jail, and facilitating phone calls. According to M.C., the Division did not even attempt to establish a case plan for him.
Here, the record shows that the Division offered M.C. services while he was incarcerated. It arranged for Michael to visit M.C. in prison, but the court had noted in February 2014 that M.C. did not want visits with his son while he was in the prison's lockdown unit.
Furthermore, the court had directed M.C. or his attorney to inform the Division if he is moved, so that visits could resume. M.C. and his attorney never notified the Division of a change of custody status. M.C. later was transferred to another correctional facility. Thereafter, Michael was scheduled to attend a bonding evaluation but he refused to go to the prison.
In addition, the Division's worker testified that M.C. had participated in some programs while in jail, including parenting classes and behavior modification, but M.C. never provided proof that he had completed those programs. The Division also notes that it had been ordered to arrange telephone contact between M.C. and Michael. It did so but M.C. apparently had some difficulty reaching the foster home. The Division made alternative arrangements, and M.C. never thereafter informed the Division that he had a problem making these calls.
We are convinced that there is sufficient credible evidence in the record to support the judge's finding that the Division's efforts to effect a reunification of Michael and M.C. were reasonable under the circumstances. M.C.'s claim to the contrary is without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).
Finally, M.C. argues that the Division failed to establish the second prong of the best interests tests because it did not prove that he was unwilling or unable to eliminate the harm facing his son, as required by N.J.S.A. 30:4C-15.1(a)(2). M.C. contends that the judge failed to properly "analyze the evidence as to whether or not M.C. could be in the position to parent in the foreseeable future." M.C. says the judge ignored the fact that he independently sought services while incarcerated, which included substance abuse treatment and parenting skills classes.
Here, the judge did not base her prong-two findings solely upon M.C.'s incarceration, although the judge properly considered M.C.'s incarceration to be a factor in her decision. See N.J. Div. of Youth and Family Servs. v. R.G., 217 N.J. 527, 560 (2014) (noting that incarceration may be probative as to whether the incarcerated parent has the ability to provide proper care for a child). The judge noted that, while M.C. was in jail or residing in Florida, he was unable to provide Michael with a safe and stable home. The judge found that this would not change in the foreseeable future, and stated that the child's need for permanency was paramount. The record supports those findings.
We conclude that the record fully supports the judge's conclusion that the Division had clearly and convincingly established all four prongs of the test in N.J.S.A. 30:4C-15.1(a) for termination of M.C.'s parental rights.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION