Opinion
DOCKET NO. A-4851-14T1 DOCKET NO. A-4852-14T1
02-10-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.C. and S.C., Defendants-Appellants, IN THE MATTER OF THE GUARDIANSHIP OF Sy.C., K.C., L.C., Sa.C., and A.C., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant M.C. in A-4851-14 (Theodore J. Baker, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant S.C. in A-4852-14 (Deric Wu, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, and Leah A. Schmidt, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-62-13. Joseph E. Krakora, Public Defender, attorney for appellant M.C. in A-4851-14 (Theodore J. Baker, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant S.C. in A-4852-14 (Deric Wu, Assistant Deputy Public Defender, of counsel and on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, and Leah A. Schmidt, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, a married mother and father, respectively defendant S.C. ("Sophia") and defendant M.C. ("Matthew"), contest the Family Part's June 15, 2015 final judgment of guardianship terminating their parental rights to five of their children: Sy.C ("Sylvana"), who is presently thirteen years old, K.C. ("Kathleen"), who is presently ten years old, L.C. ("Logan"), who is presently nine years old, Sa.C. ("Samuel"), who is presently seven years old, and A.C. ("Andrew"), who is presently five years old.
We use initials and pseudonyms for the family members to protect the privacy of the minors involved.
Sophia was married to her first husband at the time of Sylvana's birth. However, paternity testing showed that Matthew is Sylvana's biological father, and the trial court so found under N.J.S.A. 9:17-43.
Sophia also has three older children who are not part of this litigation and who are being raised by their maternal grandmother in Maryland.
As discussed, infra, in February 2012 the former Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the "Division"), removed the children from defendants' care. The Division filed a complaint for custody, which the Family Part granted. In May 2013, the trial court approved the Division's permanency plan of concurrently working toward family reunification while seeking termination of parental rights followed by adoption, with the singular plan of adoption affirmed in later orders.
In June 2013, the Division filed a complaint for guardianship. The guardianship trial occurred on various dates between February and May 2015, after which the trial judge, Hon. Jeffrey J. Waldman, entered and issued oral and written opinions.
On appeal, defendants collectively argue that the Division did not prove three of the four prongs of the statutory "best interests of the child" test under N.J.S.A. 30:4C-15.1(a). Having considered these arguments in light of the record and the applicable law, we affirm, substantially for the cogent and well-supported reasons set forth by Judge Waldman.
I.
Defendants' Family and the Involvement of Child Welfare Agencies in New Jersey and Maryland
The Division first became involved with this family on February 6, 2012, when it received a referral from a homeless shelter in Atlantic City where the family had sought assistance. Defendants told the Division they had come to New Jersey from their home state of Maryland, because their home had been condemned and they had been unable to receive support in either Maryland or Delaware. In investigating the referral, however, the Division discovered that defendants' contentions were not true.
The Division learned that, in fact, defendants' home had not been condemned, and both Delaware and Maryland had open child protective services cases concerning the family. Maryland's social services agencies in particular had a long history of involvement with the family. The Maryland child protective services agency ("DSS") had recently substantiated defendants for neglect and had been contemplating removal of the children.
At trial, Sophia denied fleeing Maryland and Delaware to avoid child welfare involvement.
The Division further learned that defendants received disability benefits: Matthew for bipolar disorder and the effects of a traumatic brain injury suffered in his youth, and Sophia for a learning disability, although Sophia's mother reported that Sophia also suffered from mental health issues. Defendants were homeless, unable to provide for or adequately supervise their children, and they had no plan for the future. Moreover, Sylvana and Kathleen had not been in school since December.
The Division later learned that Matthew suffered his traumatic brain injury in a motor vehicle accident in 1988, after he escaped from a prison work release program and was involved in a high-speed police chase.
Defendants had apparently met while receiving treatment at a drug rehabilitation facility in Maryland.
The Division provided the family with emergency housing assistance at a motel, and looked into whether the family was eligible for other housing and financial benefits. However, just three days later, on February 9, 2012, defendants checked out of the motel, and the Division at that point lost contact with them.
On February 16, 2012, the Division received another referral for the family, from a church in Atlantic City where defendants had sought food and shelter. On this date, the Division substantiated defendants for neglect, and effectuated an emergency removal of the children on the ground that defendants had failed to meet their children's basic needs for food, clean clothing, shelter, medical care, and education. The children were then treated for existing illnesses and injuries. Most acutely, the daughters were suffering from tonsillitis, Andrew had bronchitis, and Logan had third-degree burns on his right arm and leg and also required dental care for his many cavities.
Several days later, the Division filed a complaint for custody, which the trial court granted. The Division placed the daughters in one foster home and the sons in another and the children regularly visited with one another. The children also received necessary services for developmental, speech therapy, and behavioral issues.
The Division additionally provided defendants with court-ordered services, including visitation, parenting classes, medical and mental health treatment, and links to housing assistance, and in June 2012 defendants stipulated to needing such services.
In the meantime, however, in April 2012, defendants moved back to Maryland. Sophia was pregnant at the time. She testified at trial that she left New Jersey in order to avoid the Division taking custody of that anticipated child, David, who was born in May 2012.
Notwithstanding defendants' move to Maryland, the Division continued to offer defendants visitation in New Jersey, with reimbursement for their travel expenses. However, defendants did not appear for visitation for five months, until September 20, 2012. In the interim, defendants briefly separated, with Sophia advising the Division in August that Matthew had stolen money from her, was off his medication, and was drinking again.
The Division also arranged for a hotel and travel reimbursement for defendants to appear at trial.
After the September 2012 visit, defendants did not appear for another visit until January 2013. Over the next two years, visits continued to be sporadic, and there were periods when the Division was unable to make contact with defendants and did not know where they were residing.
In an attempt to explain their missed visits, defendants claimed problems with the Division's financial reimbursement for the cost of travel; car problems; weather problems; and pregnancy-related travel restrictions placed on Sophia's travel in connection with David's May 2012 birth. In September 2013, Sophia gave birth to her tenth child, Meldrick. The defendants continued to miss visitations in New Jersey. They attributed these absences to travel restrictions placed on Sophia in connection with Meldrick's birth; illness; an inability to find child care for their younger sons; Matthew's inability to drive due to losing his driver's license; and Matthew's incarceration for credit card theft between May and July 2014.
Regardless of defendants' asserted reasons, the record reflects that the missed visits were distressing to the children. Moreover, visits were sometimes chaotic, as defendants were not always able to control their children. In addition, Matthew sometimes made inappropriate statements that upset them, including once commenting on Sylvana's developing breasts, and other times instructing the children to act up in their resource homes, or not to hug their resource parents because they have germs.
As for other services, the court ordered parenting capacity evaluations, which were performed in February 2013. The evaluator concluded that neither defendant possessed the necessary parenting or life skills to safely and adequately parent their children. She recommended that Matthew be evaluated by a neuropsychologist to determine if there were any interventions that could realistically improve his functioning, and that Sophia complete an intensive behavioral parenting program, such as parent-child interaction therapy. The evaluator concluded that defendants' prognosis was poor, however, due to their lack of a support system, Sophia's cognitive limitations, and Matthew's permanent brain injury.
Thereafter, the Division referred defendants for parent-child interactive therapy in coordination with their visits. However, they were non-compliant with this service and ultimately dropped from the program due to their lack of attendance. Therapeutic visitation was instituted in October 2014, but this service also was terminated due to defendants' inconsistent attendance.
The court also ordered Matthew to undergo a substance abuse evaluation, which occurred in January 2013. At the evaluation, Matthew reported a substantial history of substance abuse, but he denied present use other than alcohol. The evaluation agency determined that Matthew met the criteria for outpatient treatment and random drug screening. However, due to his mental health issues, the agency recommended that he first undergo a psychiatric evaluation and be stabilized on medication, after which he could be re-referred for a new evaluation.
The court consequently ordered Matthew to undergo a psychiatric examination, as well as Sophia, since a psychologist had recommended that she also be psychiatrically evaluated. However, defendants never attended their appointments.
Additionally, the court ordered the Division to attempt to engage defendants in services in Maryland, so the Division contacted the DSS for assistance. However, although Maryland's social services agencies were occasionally involved with the family, the DSS did not have an open case for services, so it could not take action.
A Division caseworker advised defendants of the services required, and defendants were given a list of parenting classes available in Maryland. Records also reflect that the Division offered to fund services in Maryland if defendants' insurance would not cover the cost. Although Sophia denied receiving any such offer, defendants never claimed that cost prohibited their engagement in services. The Division caseworker testified that arranging services in Maryland was complicated by defendants' transient lifestyle, and the Division's inability to find them.
Ultimately, defendants did engage in some of the services required by New Jersey. However, they did not always grant the Division releases to document those services, despite a court order to do so. In particular, defendants completed parenting classes in 2013. They also participated in some mental health treatment, but their participation was inconsistent.
Matthew also underwent a substance abuse assessment in Maryland in December 2013, the results of which were reported to the Division. He tested negative for all substances at that time. However, he admitted to monthly drug binges coinciding with the receipt of his disability check, and to smoking $300 to $500 worth of crack cocaine in November 2013. As a result of this assessment, Matthew was referred to an outpatient program in Maryland, pending admission to the "Go Getters" treatment program. Matthew attended only a few outpatient sessions, however, and also reported current use of cocaine.
The Division's attempts to place the children with family in Maryland were unsuccessful. Sophia's mother was unable to care for the children due to her age and her responsibility for Sophia's three older children. Moreover, Matthew's aunt ruled herself out, as did his mother. The record includes a September 2012 letter from the Division's Atlantic County District Office, requesting that the Department of Children and Families Interstate Services Unit seek a foster home for the children in Maryland. However, the record does not reflect anything further about this request.
With respect to defendants' housing, for the most part, they have been transient, regularly moving between hotels and motels, homes of friends and acquaintances, and sometimes sleeping in their vehicle. At one point in 2012 defendants reported that they had obtained housing, so the Division asked Maryland for an interstate assessment. However, in March 2013, the DSS denied any placement with defendants due to concerns over their ability to care for their children, and the likelihood that they would soon lose their housing due to unpaid bills. The DSS also expressed concerns about Matthew's criminal history.
In October 2013, defendants obtained another residence. However, Sophia testified that they lost that housing in March 2014, after just five months, and thereafter they returned to transient housing.
It was during this period of homelessness that Maryland's DSS became re-involved with the family. James Miller, a social worker with DSS, testified that in September 2014 (more than two-and-a-half years after the children were removed by the Division, and just five months before the guardianship trial commenced), defendants were referred to DSS due to their homelessness and lack of resources to care for their two youngest children.
Miller discovered that the family was living out of their vehicle, which was overloaded with belongings, and sometimes sleeping in motels.
Miller looked into shelter placements. However, Sophia refused to go to a shelter where she and the children would be separated from Matthew. Miller also provided defendants with emergency financial assistance, including gift cards for food, gas, and clothing, and arranged for Sophia to sign up for Women, Infants, and Children benefits.
Sophia told Miller that Matthew regularly became angry and disappeared, usually during the first week of the month, after he received his disability check, leaving the family with no money. Sophia also expressed her belief as to where Matthew was spending time, which Miller knew to be a hub for drug activity.
Thus, Miller was concerned about Matthew's possible substance abuse, which was also documented in DSS records. When Miller met with Matthew, he denied any need for substance abuse treatment, and his urine test was negative. However, he did not show up for any additional tests, causing the DSS to assume he would have tested positive.
Miller also had concerns about defendants' mental health. Sophia exhibited signs of depression, and stated that she was receiving counseling, whereas Matthew stated that he took medication for bipolar disorder but was not involved in any services. Miller took the family to the Frederick County (Maryland) Health Department, but Sophia refused to provide a release for her records from a Maryland hospital, and Matthew did not attend the mental health evaluation scheduled for him on November 6, 2014.
On the whole, Miller was concerned about defendants' problems with supervising their children and their "inability to . . . plan and follow through with necessary resources", which placed their children at risk for lack of food, shelter, safety, and medical attention.
On November 7, 2014, the DSS removed David and Meldrick from defendants' care in Maryland based upon the aforementioned concerns, and because the children had been placed in imminent risk of harm based upon defendants' decision to have the family sleep in their vehicle on extremely cold nights.
A Maryland court subsequently upheld the removal and found that the children had been abused or neglected and were in need of assistance. The parents were provided with visitation, and ordered to cooperate with the DSS with regard to other services, including mental health assessments, individual and family therapy, and parent coaching. Matthew was also ordered to undergo a substance abuse evaluation and comply with any recommendations made as a result. With defendants thus re-engaged with services in Maryland, the Division again attempted to coordinate the services required by New Jersey through the DSS.
As of the time of the guardianship trial, however, defendants were only partially compliant with the ordered services. Sophia had undergone a mental health evaluation, and both parents had met with their family assessor and a parent coach, and signed up for marriage counseling. Sophia had also taken parenting classes. However, Matthew had not undergone either a mental health or substance abuse evaluation, and Sophia had terminated her individual counseling, stating that she did not need such services. The parents had missed three visits with their children, and as of the first day of trial they remained homeless.
According to Miller, Sophia seemed to believe that she would simply be given a home that met the family's financial needs, and both parents seemed to believe that if they were provided with a home all of their children would be returned to them, even if they did not engage in any services, which they claimed not to need.
Thus, DSS's unfavorable experience with defendants has been consistent with the Division's. Division caseworker Brianna Baldwin testified at the guardianship trial that, three years after removal, defendants still had no plan for reunification. They continued to suffer mental health issues, and they had no understanding of, or ability to provide for their five children under Division care.
Testifying on her own behalf, Sophia stated that on February 16, 2015, six days after the start of trial, defendants moved into a three-bedroom townhome, which they rented for $1000 per month under a six-month lease. Defendants intended to pay the rent and other bills using their Social Security benefits, food stamps, and wages from Sophia's jobs cleaning houses and working for a package delivery company. The family also anticipated receiving additional Social Security benefits if the children were returned to them.
Defendants had not been forthcoming with the Division about their finances, and Sophia had not provided the Division with any documentation substantiating her employment.
Sophia believed the entire family could reside in the townhouse, with Sylvana and Kathleen sharing a bedroom, Logan, Samuel, and Andrew sharing a bedroom, and the two younger boys sleeping in the bedroom with their parents. Sophia admitted on cross-examination, however, that the lease permitted only defendants and three of their children (Sylvana, David, and Meldrick) to reside in the home.
In a later portion of testimony, Sophia also admitted to financial problems. She had quit her package delivery company job, and she and Matthew were both out of work, while she attended beauty school financed by a student loan. By May 2015, the couple was already behind on their rent.
Nevertheless, Sophia denied any inability to care for her ten children. She said that her older three children lived with her mother by her mother's choice. Moreover, she claimed that she and Matthew had been meeting their other children's needs prior to their removal.
She claimed that she and Matthew were participating in all of the services required by the State of Maryland, which she stated were essentially what New Jersey required except for the psychiatric evaluations. She denied that Matthew used drugs or alcohol or that he needed substance abuse treatment, and she denied any need for mental health treatment or parenting classes.
The Division's Plans for the Children
The Division's plan for all five children under its care was termination of parental rights followed by adoption. The specifics varied for each child. The goal was for Kathleen to be adopted by her resource parent, with whom she had resided since her removal. The goal for Sylvana was select home adoption in a therapeutic resource home. No prospective home had been identified for her at the time of trial, but the termination of defendants' parental rights would significantly increase the pool of available homes, and the Division was confident that a permanent home could be found. With respect to Logan, Samuel, and Andrew, on February 6, 2015, four days before the start of trial, they were placed in the same resource home as their sisters due to concerns that they were being hit by their previous resource parents. The new resource parent expressed a desire to adopt Logan as well as Kathleen. Thus, at the time of trial, the plan was for Logan to be adopted into this home.
However, we have been advised that since the end of trial, Logan has been moved to a Community Treatment Solutions treatment home.
The Division's plans for Samuel and Andrew were select home adoption, although at the time of trial the Division was still searching for a suitable home for them. DSS had suggested placing these sons in the Maryland foster home with their younger brothers, David and Meldrick, and the Division was exploring that option. However, the Division's preference was for the sons to remain in New Jersey, where there was a greater possibility they would remain in contact with their sisters.
Dr. Gambone's Expert Evaluations and Testimony
The Division's psychological expert, Dr. Gregory Gambone, testified at trial based upon evaluations he conducted in January 2014 and January 2015. These included psychological evaluations of both defendants, a bonding evaluation between defendants and all five children, and a bonding evaluation between Kathleen and her resource parent. Dr. Gambone also performed a supplemental review in February 2015, in light of the three sons' removal from their resource home.
Dr. Gambone concluded that defendants were unable to provide minimally adequate parenting to their children by consistently providing a safe home, food, medical care, and schooling. He opined that this situation was unlikely to change, and that, given the length of time the children had already been in foster care, it was not in their best interests to delay a decision regarding permanency.
Dr. Gambone found that Sophia had a history of mental illness as well as a minimal level of intellectual functioning. He further found that Sophia prioritized her relationship with Matthew over the safety of her children, as demonstrated by her refusal of a short-term shelter placement in Maryland that would have required separating from him. He also found she lacked insight into her issues, for example, by failing to understand the problem with living in a vehicle. Moreover, she engaged in "magical thinking" about the future in that she aspired to maintain a home and a job, but she had no realistic plan for achieving those goals.
Dr. Gambone similarly found that Matthew had no plan for the future. According to the expert, Matthew had neurological problems and cognitive deficits secondary to his brain injury. Matthew suffered from bipolar disorder and antisocial personality disorder, and had a long history of drug and alcohol abuse, impulsiveness, lack of respect for authority, and of fleeing from his problems, which were not conducive to safe parenting. Thus, Dr. Gambone concluded that Matthew was in need of both psychiatric and substance abuse treatment.
Based upon his evaluations, Dr. Gambone supported the Division's plans for the termination of parental rights. With respect to Kathleen, Dr. Gambone testified that she was closely bonded with her resource parent, under whose care she was thriving, and if separated from her resource parent she would suffer permanent emotional, cognitive, and social impairments. By contrast, Kathleen would not suffer any harm from the termination of her relationship with defendants.
As for the other children, Dr. Gambone testified that they only had weak and inconsistent attachment to their parents, and it was not in their best interest to return to their care. With respect to Sylvana in particular, Dr. Gambone predicted she might experience some distress from the termination of her relationship with her parents. However, he also opined that any negative consequences would not be lasting, and could be mitigated and minimized through therapy in the context of a consistent and predictable environment such as a resource home.
With respect to the three sons, Dr. Gambone found that their "weak and inconsistent attachment and limited cognitive emotional dependence" on their biological parents suggested that the termination of defendants' parental rights would not cause them any "notable psychological stress or behavioral dysfunction," and that any resulting harm would not be lasting. The lack of a permanent adoptive home for the boys did not alter Dr. Gambone's conclusion that termination of defendants' parental rights was appropriate because his conclusion was based upon defendants' parental inadequacy, which was likely to continue.
Defendants did not present any competing expert testimony. Nor did the Law Guardian, which joined with the Division in advocating termination.
The Trial Court's Decision
After considering these proofs, Judge Waldman concluded in his detailed oral and written opinions that the Division had demonstrated all four prongs of the termination statute, N.J.S.A. 30:4C-15.1(a), by the required level of 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; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
With respect to prong one of the statutory test, the court found that defendants had been unemployed for protracted periods of time, and both at the time of removal and at the time of trial they were unable to provide basic necessities for the children, including food, clothing, shelter, education, medical and dental care, supervision, and stability. The judge further concluded that defendants had harmed their children by moving out of state and failing to maintain consistent contact with them.
Judge Waldman also concluded that Matthew's substance abuse and criminal behavior threatened the stability of the family, and therefore the health, safety, and welfare of the children, by hindering his already limited parental capacity and contributing to the family's financial insecurity. Similarly, both defendants' mental health conditions and cognitive limitations were of concern.
With respect to prong two, Judge Waldman found that defendants were unwilling or unable to eliminate the harm facing their five children, and the delay of permanent placement would add to the harm already suffered. In support of this conclusion, the judge cited defendants' continued transience, housing instability, and substantial periods of homelessness; Matthew's substance abuse, which Sophia refused to acknowledge, and Matthew refused to address through recommended services; Matthew's involvement in criminal activity; defendants' failure to consistently visit their children; defendants' failure to engage in the intensive parenting skills training recommended by the Division; defendants' failure to improve their parenting skills through the training they undertook in Maryland; defendants' refusal to engage in psychiatric services; and defendants' failure to consistently engage in counseling and benefit therefrom. As the judge summarized it, "[t]hroughout the Division's involvement, [defendants] have demonstrated an attitude toward services that was uncooperative and hostile."
Moreover, Judge Waldman noted Maryland's removal of defendants' youngest children due to neglect, and defendants' inability to meet Sylvana's special needs. Finally, the court credited Dr. Gambone's testimony in forecasting the severe damage that would ensue should the bond be broken between Kathleen and her foster mother.
Regarding prong three, the judge found that over three years the Division attempted to provide meaningful services to defendants both in New Jersey and Maryland, but they "frustrated the Division's efforts at every turn." The judge noted that the Division offered classes, parenting capacity evaluations, psychological and psychiatric treatment, substance abuse treatment, and transportation assistance, but defendants' unavailability and unwillingness thwarted their efforts. Further, the judge found the Division pursued placement options with defendants' family members who were unwilling to provide for the children. Because of those facts, the judge found the Division met prong three.
Lastly, Judge Waldman relied on Dr. Gambone's unrebutted, credible testimony to find that prong four was met by clear and convincing evidence. The judge found that the expert's testimony revealed a "weak and inconsistent" bond between each of the children and defendants, and that "the children would not likely suffer any serious or enduring harm" by the court terminating defendants' parental rights. Although at the time only Kathleen and Logan had clear paths to adoption, the court relied on Dr. Gambone's testimony that the select home adoption plan for Sylvana, Samuel, and Andrew was appropriate. The court accordingly concluded that prong four was met and found that "waiting for an adoptive home is a better option for the children than waiting for the parents to demonstrate parental fitness."
In sum, Judge Waldman concluded that the Division had established by clear and convincing proof the four prongs of the best interests of the child test, and terminated defendants' parental rights.
II.
In considering defendants' contentions seeking to set aside the trial court's decision, we must be mindful that our scope of appellate review of a guardianship judgment is limited. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). A reviewing court should not disturb the factual findings of the trial court if they are supported by "adequate, substantial and credible evidence[.]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We remain mindful, however, that this traditional scope of review is broadened "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]" R.G., supra, 217 N.J. at 552 (quoting J.T., supra, 269 N.J. Super. at 188-89). In such instances, a trial court's interpretations of the law and subsequent legal consequences of the facts are afforded no special deference. Ibid.
Prongs One and Two
In their briefs on appeal, defendants do not dispute the trial court's findings as to prong one, and Sophia does not contest the findings as to prong two. However, Matthew argues that the court's findings as to prong two were based principally upon the effects of the family's poverty. He claims prong two was not established because defendants participated in services in Maryland and recently obtained adequate housing, and Sophia was looking for employment to supplement the Social Security and food stamps they received.
We reject these arguments. The first two prongs of the statutory test were proven based upon all the factors correctly noted by Judge Waldman, including, among other things, defendants' transience and willingness to comply with Division services, which negatively affected their ability to regularly visit and sustain a healthy relationship with their five children in this State. See New Jersey Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012); M.M., supra, 189 N.J. at 281-84; In re Guardianship of K.H.O., 161 N.J. 337, 349-54 (1999); N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 223-25 (App. Div. 2013).
Prong Three
Turning next to the third prong of the statutory test, we agree with Judge Waldman that the Division made reasonable efforts to provide services to defendants, and that alternatives to termination of their parental rights were duly considered. The judge made extensive findings about the assistance the Division provided to the family, and defendants' failure to participate in or benefit from the services offered, including parenting capacity evaluations, psychological and psychiatric evaluations and treatment, individual counseling, family counseling, substance abuse evaluations and treatment, transportation assistance, and visitation. Those findings are supported by the record and warrant our deference.
The judge observed that defendants had undercut the Division's ability to engage them in necessary services by moving to Maryland and failing to maintain contact with the Division or disclose their location.
Matthew contends the third prong was not proven because the Division arranged for services only in New Jersey and not in Maryland where defendants resided, and did not coordinate with agencies in Maryland, which could have provided the services needed. We reject that contention, as the record supports the trial court's contrary findings. The Division offered numerous services to defendants in New Jersey, coordinated with their visits with the children, and the Division provided defendants with financial reimbursement for their travel expenses. Some of these services, particularly therapeutic visitation and parent-child interactive therapy, could only take place in New Jersey because the children had to be involved. However, defendants did not participate in these services. Moreover, defendants explicitly rejected participation in psychiatric evaluations, which were ordered by the court.
Sophia does not contest the trial court's findings with respect to prong three. --------
As we have already noted, defendants moved out of New Jersey shortly after the children were removed, and thereafter had only transient housing in the State of Maryland, moving from place to place and failing to maintain consistent contact with the Division. These actions complicated the Division's efforts to effectuate services. See, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113-15 (App. Div.) (finding that mother harmed her child by moving from New Jersey to Missouri "in derogation of her responsibilities as a parent," and thereafter failing to maintain contact with the Division and her child), certif. denied, 180 N.J. 456 (2004). See also In re Guardianship of D.M.H., 161 N.J. 365, 392 (1999) (noting that the parent often frustrated Division's efforts to help him).
Nevertheless, the Division duly attempted to coordinate services with the State of Maryland, and defendants participated in some recommended services, including parenting classes, psychological therapy, and substance abuse evaluations. The Division communicated with the providers about whom defendants provided information. However, defendants unfortunately did not benefit from their participation in parenting classes, their participation in therapy was only sporadic, and Matthew was non-compliant with drug treatment.
More fundamentally, defendants rejected the notion that they required any services, other than financial and housing assistance. See, e.g., H.R., supra, 431 N.J. Super. at 225 (noting, in an opinion affirming termination, that the Division had "provided transportation expenses for the father to travel from Ohio to New Jersey every month to visit with his daughter. Despite these efforts, neither defendant showed an inclination or ability to benefit from all the services provided."); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2001) (finding that the defendant lacked insight and skill to become a better parent as a result of psychiatric disability) certif. denied, 171 N.J. 44 (2002). Therefore, the court had more than sufficient evidence to conclude that prong three was met.
Prong Four
With respect to the fourth prong, there is ample support for Judge Waldman's conclusion that the termination of defendants' parental rights would not do more harm than good, notwithstanding that at the time of trial the Division did not have prospective adoptive homes for three of the five children. The judge relied on the uncontested expert testimony of Dr. Gambone, who credibly "opined that the children had a weak and inconsistent attachment with their biological parents and that any negative consequences associated with termination" would not be serious or enduring, and "could be addressed through counseling in a safe and stable home." The judge accepted Dr. Gambone's opinion that it was in Kathleen and Logan's best interests to be adopted by their resource parent, and for the other three children to be adopted through select home adoption, because in these placements the children would obtain the services, safety, and permanence they required, which defendants were unable to provide. The judge acknowledged that select home adoption was "not preferable to an identified home adoption," but noted the optimistic trial testimony about the children's likelihood of adoption through the process.
Defendants argue that the Division did not establish the fourth prong by clear and convincing evidence, particularly because Sylvana, Samuel, and Andrew had no immediate prospect for adoption, and these children had no wish to be adopted. Matthew also argues that the court erred by not considering that adoption would be harmful to the children because it would sever their sibling bonds. We disagree.
The law anticipates that when considering prong four of the best interests of the child test, a trial court will be presented with expert testimony addressing the child's relative bonds with the biological and foster parents. R.G., supra, 217 N.J. at 559; K.H.O., supra, 161 N.J. at 355; In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992). At the same time, the law recognizes that the "termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." K.H.O., supra, 161 N.J. at 359.
Here, Kathleen has a strong bond with her foster mother and only a weak and inconsistent bond with her biological parents, and wishes for defendants' rights to be terminated so she can be adopted. Thus, prong four was readily satisfied with respect to her.
The four other children currently have no prospective adoptive parents, yet there is no benefit in maintaining defendants' parental rights. These children have only weak and insecure bonds with their biological parents and, for the reasons we have already discussed, defendants continue to cause them harm, with no prospect that they will ever resolve the issues that led to their removal. K.H.O., supra, 161 N.J. at 357.
We are mindful that the eldest child, Sylvana, has expressed that she would like to return to her parents, but only if defendants first visit regularly, maintain employment, and are able to provide their children with adequate housing. Defendants have managed to accomplish none of those things in the three years since removal, and it is unrealistic to believe that they will accomplish those goals in the near future.
As the trial judge correctly recognized, these children need permanency, which they will have only if defendants' parental rights are terminated. They should not be permitted to "languish indefinitely in foster care" while defendants attempt to correct the conditions that led to their removal. N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209, 214 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Finally, while we acknowledge the importance of sibling bonds, the record reflects the Division's efforts to maintain the siblings' bonds through visitation, and the Division is attempting to find adoptive homes that would support maintenance of the sibling relationships. Kathleen's prospective adoptive parents, for example, consistently facilitated her sibling relationships. The question of post-adoption sibling visitation is separate from the termination of defendants' parental rights and is not for us to resolve on this appeal. See In re D.C., 203 N.J. 545, 573-74 (2010); N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 625-27 (App. Div.), certif. denied, 192 N.J. 68 (2007).
In sum, we agree with the trial court that the Division proved by clear and convincing evidence that the termination of defendants' parental rights would not do more harm than good. The post-trial change in Logan's placement does not alter our conclusion as to him individually, as the prong four analysis in this case was not premised on Logan's bonding with his resource parent, but instead on his weak and inconsistent bond with his biological parents and on their ongoing parental unfitness.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION