Opinion
DOCKET NO. A-5042-14T2
10-26-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.F., Defendant-Appellant, and K.I., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF A.I. and B.F., Minors.
Sarah L. Monaghan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Monaghan, on the briefs). Andrea C. D'Aleo, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Louis M. Cho, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Cho, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino, Haas and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FG-10-103-15. Sarah L. Monaghan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Monaghan, on the briefs). Andrea C. D'Aleo, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief). Louis M. Cho, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Cho, on the brief). PER CURIAM
Defendant S.F. appeals from the June 30, 2015 judgment of guardianship of the Family Part terminating her parental rights to her two sons, A.I. ("Andrew"), born in 2013, and B.I. ("Brad"), born in 2014. Defendant contends that the Division of Child Protection and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.
We refer to the children and the foster parent by fictitious names to protect their identities and for ease of reference.
On February 23, 2015, the children's father, K.I., voluntarily surrendered his parental rights to the children. K.I. has not appealed the trial court's decision to terminate his parental rights.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition amply supports the decision to terminate defendant's parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge Bradford M. Bury's thorough and thoughtful, ninety-one-page written decision rendered on June 30, 2015.
We will not recite in detail the full history of the Division's involvement with defendant. Instead, we incorporate by reference Judge Bury's factual findings and legal conclusions, and summarize the more salient facts.
The Division has been involved with defendant, K.I., and their five children since April 2007. In January 2008, defendant pled guilty to a violation of probation (VOP) concerning earlier drug possession and aggravated assault convictions. In March 2008, she pled guilty to theft by deception, the offense that led to the VOP, and was sentenced to an aggregate term of three years in prison on all of the charges. Defendant and K.I. had two children at that time, "Kristen," born in 2007, and T.I. ("Tony"), born in 2008. During their parents' incarcerations, the two children lived with defendant's sister in Virginia.
Like her father, Kristen also has the initials, "K.I."
In 2009, defendant married K.I. and she also gave birth to the couple's third child, L.I. ("Lisa"), that year. Defendant and K.I. regained custody of Kristen and Tony in February 2010. Six months later, in August 2010, the Division substantiated an abuse and neglect finding against defendant and K.I. after K.I. struck Tony with a dog collar, resulting in a deep laceration to the child's head that required medical staples and bruising on his body. K.I. was incarcerated on charges of aggravated assault and endangering the welfare of a child. As a result, the Division took custody of all three children and placed them with defendant's sister in Virginia. In October 2011, defendant pled guilty to fourth-degree child abuse for her failure to protect Tony from K.I. She was later sentenced to four years of probation.
In March 2012, the Division filed a complaint for guardianship. The next month, K.I. voluntarily surrendered his parental rights to the three children. Although defendant participated in Division services during the pendency of that proceeding, she was unable to maintain stable housing or employment. In May 2013, defendant executed a voluntary surrender of her parental rights, and all three children were adopted in December 2013.
While the guardianship proceeding as to those three older children was pending, K.I. was paroled and resumed living with defendant. In July 2013, defendant gave birth to Andrew, who was later determined to have special needs. Based on the ongoing litigation, the Division took custody of Andrew when he was released from the hospital. Because defendant and K.I. were unable to provide any viable relative placements, the Division placed Andrew with a foster parent, J.F. ("Janice").
Defendant was able to maintain her sobriety during the ensuing two years of litigation. The Division referred defendant to a social worker to provide therapy for her mental health issues, but defendant's attendance at therapy sessions was inconsistent. Among other things, the Division also arranged for psychological evaluations, parenting skills classes, and supervised visitation with Andrew. The Division's expert psychologist, Dr. LaTeisha Callender, reported that defendant continued to experience problems with her mood and related behavior, and demonstrated little insight into her mental health problems.
Early in 2014, defendant told a caseworker she no longer had a relationship with K.I. However, the Division later learned she was pregnant. Defendant denied that K.I. was the father.
In March 2014, defendant secured an apartment through Bridgeway Rehabilitation Services ("Bridgeway"), which provided her with rent assistance. However, she soon lost that apartment when she let her brother and his girlfriend move in with her. After that, defendant stayed at a family friend's house for a period of time. In August 2014, defendant told a Division caseworker that K.I. had moved to Florida with his new girlfriend and their newborn child. Defendant obtained a second apartment through Bridgeway in September 2014.
One month later, defendant gave birth to Brad. Although defendant continued to claim that K.I. was not the child's father, a paternity test revealed that he was. Because defendant was unable to care for a child, the Division took custody of Brad when he left the hospital. The Division placed the baby with Janice, who was still serving as Andrew's foster parent. Janice wishes to adopt both children.
As the present guardianship trial approached, defendant filed a complaint for a divorce against K.I. A month before the trial began, defendant got a part-time job working thirty hours a week at night at a truck stop.
Defendant's counsel represented at oral argument on appeal that defendant has obtained a final judgment of divorce by default.
Judge Bury conducted a trial on multiple dates in March and April 2015. At trial, Dr. Callender testified on behalf of the Division that although defendant was "a little bit more stable" than in the past, she was not capable of safely parenting two children due to her impulsiveness and immaturity, which affected her ability to place her children's needs above her own. Dr. Callender stated that despite his young age, Andrew had begun to bond with Janice, who was acutely aware of Andrew's developmental needs, and had consistently managed his physical and occupational therapy appointments. Dr. Callender believed that Andrew had a comparable level of attachment to both Janice and defendant, but the child sought nurturance and comfort from Janice.
Defendant's expert psychologist, Dr. James Reynolds, acknowledged that, unlike Dr. Callender, he did not review all of the Division's records and did not speak to defendant's service providers. At the time of Dr. Reynolds' evaluation, defendant had never had any unsupervised parenting time with either child. Nevertheless, Dr. Reynolds opined that the two children could be reunited with defendant if the reunification were implemented in stages over an unspecified period of time. Dr. Reynolds testified that Andrew had a bond with Janice and this would "be an area for struggle for him" if that bond were broken. However, Dr. Reynolds stated that any harm in severing the bond could be ameliorated if proper supports were in place.
Defendant testified that if she regained custody of the children, she would attempt to increase her hours at the truck stop where she worked nights to a full-time shift during the day, and obtain daycare and other child care assistance through an agency. She was drug-free at the time of the trial, and was still living in the second Bridgeway apartment.
In his comprehensive opinion, Judge Bury reviewed the evidence presented, and thereafter concluded that (1) the Division had proven all four prongs of the best interests test by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a); and (2) termination of defendant's parental rights was in Andrew and Brad's best interests.
N.J.S.A. 30:4C-15.1(a) allows for termination when the Division proves, by clear and convincing evidence, that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The 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.
With regard to prong one, N.J.S.A. 30:4C-15.1(a)(1), the court found that the Division met its burden because defendant:
failed to provide even the minimum degree of care for A[ndrew] and B[rad] since birth, excluding supervised parenting time. She has been unable and/or unwilling to exercise custody and direct care of her sons due to a myriad of issues. The development of A[ndrew] and B[rad] has been harmed by [defendant]'s acts and/or omissions, and said harm is substantially likely to continue in the future. Both boys were removed from [defendant]'s care at birth because of unstable housing, unstable employment, inconsistent progress with her therapist, . . . (four-plus years), the inability to separate herself from [K.I.] and other negative influences, financial instability and criminal history with regard to the physical abuse of her son, T[ony]. Because of [defendant]'s unwillingness and/or inability to successfully engage in services, A[ndrew] and B[rad] have missed their mother's custody and direct nurture and care since birth; two years and eight months, respectively. The [c]ourt finds that A[ndrew] and B[rad] have been harmed thereby and/or will likely continue to be harmed in the future because of the hereinabove noted circumstances of [defendant].
Addressing prong two, N.J.S.A. 30:4C-15.1(a)(2), Judge Bury found that although "moderately willing," defendant was unable to eliminate the harm facing Andrew and Brad, or provide a safe and stable home for them. The judge observed that after almost five years of litigation involving her children, defendant "was only marginally closer to establishing sufficient emotional, economic and residential stability." He also found it significant that even Dr. Reynolds would only suggest a gradual reunification in stages over an unspecified period of time.
Moving to the third statutory prong, N.J.S.A. 30:4C-15.1(a)(3), Judge Bury found that the Division made reasonable efforts to provide services to help defendant correct the circumstances which led to the outside placement of the children. Specifically, the judge emphasized the fact that the Division provided "regular visitation, encouragement of an ongoing parent/child relationship, domestic violence help and referrals to obtain housing." He noted that, although "the Division identified [defendant]'s parenting deficits and the harm [they] created for [the children] and provided, or attempted to provide, the necessary services to reunify" defendant with them, defendant "made the choice not to fully engage in those services, and then [did] so at the eleventh hour."
The judge also found there were "no alternatives to termination" because the children had resided with their foster parent for the duration of their short lives and because adoption was both feasible and likely, in addition to being necessary for Andrew and Brad's well-being. The judge stated that there was "no other option" to assure the children a safe and healthy environment because defendant's "inability to fully and consistently address suitable and stable housing, stable employment, and mental health counseling, and the failure to address domestic violence counseling, ha[d] defeated her ability to reunite with" the children.
Turning to the fourth prong, N.J.S.A. 30:4C-15.1(a)(4), Judge Bury concluded that the termination of defendant's parental rights would not do more harm than good and that terminating defendant's parental rights was in the children's best interests. In his ruling, the judge acknowledged that defendant had made progress, especially in the months leading up to the trial. She continued to be drug free, and had recently obtained housing and a job. The judge also stated that defendant loved the children and had developed a bond with Andrew. However, defendant had never been deemed ready to have unsupervised visitation with the children, and her own expert testified that the timetable for any potential reunification was unclear.
In explaining his decision, Judge Bury stated:
It is not an easy decision given [defendant]'s recent personal progress and genuine love for her children and desire for reunification. Ultimately, however, the decision has to be based upon what is in the best interests of [the children], not [defendant], and not the foster parent. In that regard, the [c]ourt does not afford any weight to the fact that the foster parent has a better job or housing, or can offer more opportunities to the children compared to [defendant]. Love, nurture and emotional
sustenance is far more important than any economic advantage.
Ultimately, the [c]ourt believes that it is in the best interests of [the children] to be freed for adoption by the foster parent, and [defendant]'s parental rights be terminated. The [c]ourt does so with a heavy heart because it believes that [defendant] has started to turn the corner in her life on the road to redemption. She is still, however, at a very risky stage, and the [c]ourt cannot ignore the longstanding history, including termination of parental rights of her three oldest children, versus the small recent slice of progress. The [c]ourt concurs with the finding of Dr. Callender that [defendant]'s gains are recent, tentative and fragile; and the tenuous nature of those gains puts the children at risk.
The [c]ourt is very concerned that [defendant] will become overwhelmed with the responsibilities of parenting, even on a part-time basis, such that she may relapse in her sobriety, or her ability to maintain employment and ultimately stable housing. She has no plan for childcare at this time, only the acknowledgement that it would be necessary in order to work and/or when the kids start school. Unfortunately, [defendant] has no family or friends that can assist her with childcare, or otherwise act as supports. Furthermore, the children have some special needs which require greater patience, and additional time with pediatricians [and] therapists. . . . In the end, [defendant] is well-intentioned and moderately motivated, but not emotionally and/or economically equipped to sustain the level of parenting required to keep [the children] safe, and free of neglect or abuse. While her moderate cognitive and social deficits are morally blameless, they are nonetheless a factor under the totality of the circumstances as to why
the [c]ourt does not believe it is reasonable to take the substantial risk of reunification, even upon a phased-in/staged basis.
On this appeal, which I opposed by both the Law Guardian as well as the Division, our review of the trial judge's decision is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound by his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we conclude that Judge Bury's factual findings are fully supported by the record and, in light of those facts, his legal conclusions are unassailable. We therefore affirm substantially for the reasons that Judge Bury expressed in his well-reasoned opinion. We add the following brief comments.
Throughout her brief, defendant argues that the trial judge gave insufficient weight to the progress she made in her personal life prior to the trial. She argues that she remained drug free for four years, successfully maintained her second Bridgeway apartment, obtained a part-time job, and became more consistent in attending her therapy sessions in the lead-up to the trial. She also asserts that only eight months had passed between Brad's birth and the conclusion of the trial, which was an insufficient time period for her to demonstrate she could safely parent Brad and his older brother. We disagree, given the particular circumstances presented here.
Children are entitled to a permanent, safe and secure home. We acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). As public policy increasingly focuses on a child's need for permanency, the emphasis has "shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well being." Ibid. (citing N.J.S.A. 30:4C-11.1). That is because "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.
The question then is "whether the parent can become fit in time to meet the needs of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. 235, 263 (App. Div. 2005); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004) (indicating that even if a parent is trying to change, a child cannot wait indefinitely), certif. denied, 186 N.J. 257 (2006). Applying these principles, we conclude there is ample evidence in the record to support Judge Bury's finding that the children's need for permanency supported the termination of defendant's parental rights.
Defendant's primary focus on the six months immediately preceding the judge's decision ignores the fact that defendant had been involved with the Division for a number of years. Defendant had not had custody of any of her five children since August 2010. The Division provided services to defendant but because of her mental health issues and inconsistent participation in therapy, she was never able to have any unsupervised contact with either Andrew or Brad.
We recognize that the youngest child Brad was only eight months old at the time of trial, and that he had been removed from defendant at birth. Although that is a short period of time in the abstract, the lengthy history of defendant's past neglectful conduct and failures as to her older children, as well as the benefit of keeping Brad with his sibling Andrew in their foster mother's care, justify the Family Part judge's termination of her parental rights as to both boys on these facts. See S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div. 1995) (noting the advantages of keeping siblings in the same household). The trial judge did not act precipitously in deciding to enter a final judgment in this particular context. The judge was clearly mindful in his detailed opinion to the toddler and infant status of the two boys, and the momentous nature of terminating a biological parent's rights to children of such young ages. His decision, which he acknowledged issuing with a "heavy heart," is well supported by the record and the applicable law. We consequently will not disturb it, given the great deference that we owe to the Family Part's fact-finding in such matters. M.M., supra, 189 N.J. at 279.
After carefully considering defendant's testimony, and that of the mental health professionals who evaluated her, Judge Bury reasonably determined that, despite defendant's recent progress, she was still unable to parent the two young boys, and would not be able to do so for the foreseeable future. Under those circumstances, we agree with the trial judge that any further delay of permanent placement would not be in the best interests of the children.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION