Opinion
DOCKET NO. A-0523-14T3
07-08-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.F., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF T.M.C., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher Salloum, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.M.C. (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-222-14. Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher Salloum, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.M.C. (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant T.F. (Tina) appeals from the Family Part's August 26, 2014 guardianship judgment and order terminating her parental rights to her then almost two-year-old son, T.M.C. (Tyler). Tina used drugs throughout her pregnancy and Tyler was born premature with medical issues. Tina contends her parental rights should not have been terminated because the Division failed to prove each of the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. She also argues the judgment should be reversed because "the division fail[ed] to assist [her] in a meaningful way to determine whether she is a member of the Cherokee Nation." The Division and Tyler's Law Guardian disagree and urge us to affirm the court's judgment. Having considered the record in light of the parties' contentions and applicable legal standards, we affirm.
We have fictionalized the names of the parties.
I.
Tyler was prematurely born to Tina on September 5, 2012. He weighed three pounds and was placed on a breathing tube because he was unable to breathe on his own, and on a feeding tube. Because of his medical issues, he was monitored in the hospital's Neonatal Intensive Care Unit (NICU)
No father was listed on the birth certificate but Tyler was given the last name of Tina's boyfriend, T.C. ("Tony"). Tina had lived with Tony for five years but he was dismissed from the litigation as he was not Tyler's biological father. He admitted to previously using cocaine and heroin.
Tina tested positive for opiates, cannabis and phencyclidine (PCP) when Tyler was born. It is undisputed that she used drugs throughout her pregnancy, including the day Tyler was born. Tyler, however, did not test positive for drugs, nor was there any proof his medical conditions were caused by his mother's drug use. Nevertheless, the hospital made a referral to the Division because of Tina's drug use.
The Division conducted a Dodd removal of Tyler and placed him in a Division resource home. The court found "the Dodd removal was appropriate and that it would be contrary to the welfare of the child to return" him to Tina. The court granted the Division custody of Tyler based on Tina's drug use.
A "Dodd removal" refers to the emergency removal of a child without a court order pursuant to the Dodd Act, N.J.S.A. 9:6-8.32 to — 8.82. New Jersey Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
The court subsequently conducted a fact finding hearing, after which it issued an order finding Tina had abused or neglected Tyler. The court later entered a permanency order which approved the Division's plan for termination of Tina's parental rights and adoption by a foster parent. The Division subsequently filed a verified complaint for guardianship.
On June 16, 2015, we issued an unpublished opinion reversing that determination because the Division failed to establish a causal link between Tyler's medical issues and Tina's drug use. N.J. Div. of Child Protection and Perm. v. T.F., No. A-2677-13 (App. Div. June 16, 2015)(slip op. at 18).
Robert Kanen, Pys.D., conducted a psychological evaluation of Tina in November, 2012 at the Division's request. Kanen observed Tina was depressed and disoriented. She reported smoking marijuana three times per week since she was seventeen and using PCP one or two times per month since she was twenty-seven. Tina also reported she was incarcerated for three years on robbery, conspiracy and drug possession charges. Kanen concluded there was a "significant deterioration in her cognitive ability," which makes her unable to supervise, protect and care for a child. Her memory, reasoning skills and judgment were "severely impaired." He found Tina was "currently functioning in the mild mental retardation range of intelligence with an estimated full-scale IQ of 56 placing her below 99.80% of the general population." Kanen opined Tina could not provide Tyler with a safe and secure home because "her cognitive impairment leaves her at high risk for extremely poor judgment, carelessness, and insensitivity to the child." He recommended Tina complete an inpatient drug treatment program, an intensive outpatient treatment program, parenting classes and a psychiatric evaluation. Kanen conducted a second evaluation in March 2014 and again found Tina's cognitive limitations and substance abuse issues "seriously impair[ed] her ability to supervise, protect and care for her child." In addition, he opined Tina's short-term memory deficits and severe impairment in alertness would place Tyler at a high risk for harm. He once again concluded Tina could not provide Tyler with a secure home and again recommended she complete an inpatient drug treatment program.
On February 18, 2014, Kanen also performed a bonding evaluation. He found Tyler "perceives the foster mother as his mother" since she has been providing him "with a permanent, safe and secure home since the child was three weeks old." He concluded Tyler "is securely attached and bonded to the foster mother" and that he would "suffer serious and enduring harm if removed from the foster mother."
Tina failed to appear two times for her bonding evaluation. However, she finally appeared for an evaluation on March 20, 2014. Tyler was unresponsive to Tina and refused physical contact with Tina. Kanen found Tyler did not know Tina as a parental figure and opined that Tyler would suffer no harm if he was permanently separated from her.
Later, at trial, Kanen testified about the bonding evaluations and his conclusion that Tyler would not suffer harm if Tina's parental rights were terminated, but would suffer harm if he was separated from his foster parent because "this is the person the child knows as his mother and has been raised by her for most of his life." He specifically testified if Tyler were returned to Tina's care he would be "exposed to an unstable environment with drug involvement." During the evaluations, he said Tina did not know the date and "her thought processes were illogical." He also said Tina had a "serious lack of alertness to her surroundings, leaving her at high risk for not being able to recognize physical and psychological dangers in the environment that would pose a risk of harm to her child." In addition, people at Tina's "cognitive ability are at very, very high risk for not complying with medical treatment, not complying with services with their child and for their own treatment." Kanen reported that he could not administer a personality test because Tina was not able to comprehend the statements. Kanen also testified about his bonding evaluation in which Tyler avoided Tina but immediately went to the foster mother.
On April 5, 2013, Larry Dumont, M.D., conducted a psychiatric evaluation and ultimately questioned whether Tina "is able to take care of herself, much less her son." Dumont recommended she complete a parenting class and be prescribed psychotropic medication." He also recommended a neurological evaluation and recommended she continue to see a psychiatrist for medication treatment. Dumont conducted a second evaluation on May 16, 2014, and raised concerns about Tina repeatedly being admitted to hospital emergency rooms because of her substance abuse. "She continues to downplay and minimize her substance abuse issues." He noted an "infant child needs predictability in their life" and there is a "lot of financial instability in the family because she is not working."
Dumont testified at trial that Tina had "a general anxiety disorder, a post[-]traumatic stress disorder, cannabis dependence and phencyclidine dependence with underlying borderline intellectual functioning." Dumont noted that women with significant cognitive limitations could still be great parents but cautioned Tyler could be in danger because of her substance abuse issues. He was concerned that "under the influence of PCP . . . she might engage in some egregious behavior that would severely compromise the safety of the child because it really appears that she is strongly out of touch with reality when she goes into these psychotic states."
Despite Dumont's recommendation, Tina was never referred for a neurological evaluation. In addition, the Division did not assist her in obtaining a home or applications from the Division of Developmental Disabilities.
Early on, however, the Division arranged for Tina to attend a substance abuse evaluation, at which she tested positive for PCP and marijuana. Tina requested to be referred to a specific inpatient treatment program but she was not accepted. However, she did attend a different program for several months, but she again tested positive for PCP and it was determined she needed "a higher level of care." She was then sent to a hospital's outpatient substance abuse treatment program in September 2013. In December, the hospital advised that Tina tested positive for marijuana and PCP throughout the program and recommended she pursue an inpatient treatment program. The licensed clinician at the hospital noted "she seems to have comprehension issues which [are] difficult to dissect as she is also actively using PCP and marijuana."
The Division recommended Tina attend parenting classes in July 2013, but she missed the initial meeting and then was terminated from the program after arriving late, disoriented and smelling of marijuana. The Division recommended parenting classes again in January 2014, but Tina failed again to attend. Tina finally completed parenting training in March 2014. She also attended visitation with Tyler, but sometimes appeared incoherent or exhibited strange behavior. She was initially referred to the Division's Certified Alcohol and Drug Counselor but it was then decided that she should "receive counseling . . . before she gets actual drug treatment."
Despite the Division's efforts, Tina consistently tested positive for PCP and marijuana. In February and March 2014, Tina was brought to the emergency room for substance abuse issues after she was found wandering outside (naked in one instance). On March 29, 2014, Tina was seen sleeping outside the emergency room and stated "I was tired and needed a place to sleep." Later that same day, she was seen again in the emergency room because of substance abuse.
On July 25, 2013, Tina reported to a caseworker that she was part Cherokee Indian. As a result, the Division attempted to confirm whether Tyler had any Native American ancestry. Division workers gave Tina a form to fill out regarding her Cherokee Indian ancestry, but Tina lost the form and could not provide necessary information for its completion.
The Division wrote to the Cherokee Indian Nation regarding Tyler's pending proceeding and attached the form with as much information as it could provide. The Cherokee Boys Club, Inc. of North Carolina responded advising that Tyler is "neither registered [n]or eligible to register as a member of this tribe." In addition, Tyler is not "considered an 'Indian child' in relation to the Eastern Band of Cherokee Indians as defined in 25 U.S.C., Section 1903 (4)." However, the Cherokee Nation in Oklahoma stated they could not verify Tyler's Cherokee heritage because of incomplete information.
The Division responded with additional information requested by the Cherokee Nation, but Tina was not able to provide the requested necessary date of birth for one her relatives, causing the Cherokee Nation to again ask, for additional lineage information. A Division worker attempted to obtain the requested information from Tina's family but "they just didn't know the information for [him] to provide it to the Cherokee nation." Also, Tina told the Division worker she didn't want him to contact her parents.
At the guardianship trial, Kanen, Dumont, and a Division worker testified. Tina did not produce any witnesses nor did she testify. The worker described Tina's home as in a "deplorable condition, very strong odor, disorganized, messy" and not suitable for an infant. He noted there was garbage on the floor and clothes "thrown everywhere." The doctors testified consistently with their reports. All of the testimony was unrefuted by Tina.
On August 26, 2014, the court entered a judgement of guardianship and order terminating Tina's parental rights for the reasons stated in its written decision. The court found Tina "admitted to smoking marijuana laced with PCP the day she gave birth to her son. The medical records revealed that she was testing positive for marijuana all throughout her pregnancy." She also had "a history of homelessness." Tyler's drug screen was negative, but he was born premature at only three pounds. As a result, he was in the NICU for about three weeks and was unable to breathe on his own and needed a feeding tube.
The court found the Division filed a complaint for guardianship because Tina "had not been able to successfully address her substance abuse issues and has unstable housing." It recounted her multiple unsuccessful attempts for drug treatment and noted despite "being hospitalized seven times for drug use" between February and August 2014, "she denies using illegal drugs."
The court reiterated the conclusions of Tina's evaluations. It relied upon Dumont's finding that Tina was "so severely impaired by ongoing substance abuse issues, [about] which she is in denial and [her] cognitive defects that she is unable to parent her young son." The court also cited to Kanen's testimony that Tina was "too confused to understand questions," "disoriented[,] depressed and she could not recall basic information." "He found her thought process was illogical. She had no insight into her problems. Her speech was slurred and she had difficulty focusing." In addition, the court emphasized Tina's substance abuse and cognitive deficits "affect her day-to-day functioning" and would place Tyler at significant "risk of harm." It also noted Tyler was "securely attached to the foster mother" but did not recognize Tina. Additionally, the court found Tina "has not addressed her significant drug addiction, is unemployed and has unstable housing." The court held it was in Tyler's best interest for Tina's parental rights to be terminated due to Tina's "lack of progress towards reunification."
The court addressed each of the four statutory prongs of the "best interest" test applicable to guardianship proceedings. First, under prong one, the court noted Tina "continues to be drug involved" with PCP which "leads to poor judgment and its affects could last for more than six hours." The judge found, despite referrals for treatment, Tina failed to address her drug addiction since she was hospitalized seven times since February 2014 for drug-related reasons.
N.J.S.A. 30:4C-15.1(a).
The court also relied upon the undisputed fact that Tina lived in an apartment, which was "described as deplorable and unsuitable for a child," "with a paramour who has a history of heroin addiction." It also relied upon the two experts' opinions that the prognosis for Tina to change is poor and that Tyler had no bond with her. "She is little more than a stranger to him. Her continued use of drugs, unstable housing, cognitive limitations, and mental health issues have all harmed her son." The court found prong one was met because Tina "is unable to provide a safe and stable home for the child" which is "not going to change in the foreseeable future."
The court next addressed prong two, whether Tina was unable or unwilling to eliminate the harm to Tyler and whether delaying his permanent placement will add to the harm. The court noted Tina "has demonstrated that she is unwilling or unable to correct the harm that led to her son's removal. Any further delay in their permanency will add to the harm." In addition the court cited the comparative bonding evaluation in which Tyler failed to recognize or respond to Tina. In contrast, Tyler recognized and was comfortable with the foster mother. The court found prong two was met because Tyler would be harmed if removed from his foster mother and Tina's cognitive impairment and substance abuse problems would prevent her from mitigating the harm.
The court next addressed whether the Division made diligent efforts under prong three. The court detailed the many services offered to Tina including various substance abuse evaluations, out-patient and in-patient drug treatment programs. Also, the court noted the Division provided Tina with psychological and psychiatric evaluations as well as attempts to have her enroll in programs that could address her cognitive issues.
The court also found the "Division did all it could in assisting the mother with providing identifying information on her heritage." However, the court stated "[d]etermining whether the child is an 'Indian child' is a procedural issue and not a service that would have assisted her with reunification." The court therefore found prong there was met because of all of the services provided to Tina.
Finally, the court analyzed under prong four whether the termination of parental rights would do more harm than good, and found "the expert testimony was uncontroverted that the child has no bond with the mother. Moreover, the expert testimony was that the child would suffer serious and enduring harm if removed from his foster parent." Thus, the court found prong four was also met since terminating Tina's parental rights "will not do more harm than good."
II.
The scope of appellate review in guardianship matters is strictly limited." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super., 551, 577 (App. Div. 2010). The court must defer to the trial judge's findings if they are supported by substantial, credible evidence, though legal conclusions are always subject to review. In re Adoption of Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998).
Termination of parental rights is a difficult and intentionally rigorous process, subject to a heightened burden of proof. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010). Therefore, the Division must proffer clear and convincing evidence that the four statutory criteria are satisfied. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Clear and convincing evidence "should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In re Perskie, 207 N.J. 275, 290 (2011) (citations omitted).
The standards for terminating parental rights are in keeping with public policy and constitutional doctrine, In re Guardianship of J.C., 129 N.J. 1, 9 (1992), as parents have a fundamental, constitutionally-protected interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745 (1982). However, these constitutional protections are often confronted by the State's parens patriae responsibility to prevent harm to children. J.C., supra, 129 N.J. at 10.
The statutory "best interests" test aims to achieve an appropriate balance between parental rights and the State's duty to children. The State may terminate parental rights only when
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;The above requirements should not be considered separately, but should form a composite picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
(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).]
Moreover, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." J.C., supra, 129 N.J. at 10. Therefore, parents in such proceedings should not be presumed unfit, and "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
As to the first prong, Tina argues that drug use during her pregnancy did not cause harm to Tyler. Tina emphasized that Tyler was born drug free and there was no evidence that Tina's drug use caused Tyler's premature birth or other medical problems. In addition, she claims Tyler was not harmed by her housing situation.
We only address the first three prongs of the "best interest test." Although Tina's brief's first point refers to "all four prongs," she neither lists the fourth prong in her brief point's sub headings nor does she include an argument regarding the fourth prong in her brief. Accordingly, we deem any argument as to the fourth prong to have been waived. R. 2:6-2(a)(5). See also Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).
The Division responds that Tina has failed to support Tyler and has not "availed herself of services to address the Division's concerns." In addition, the Division highlights that Tina was using drugs up until she gave birth to Tyler. She continued to use drugs after the pregnancy which prevented her from completing substance abuse treatment programs and caused her to visit the emergency room multiple times. The Law Guardian adds that Tina was not and would not be able to provide Tyler a secure home. As a result, Tyler had to spend his entire life in foster care without daily support from Tina.
Under the first prong, the Division must prove harm that "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. However, this harm does not have to be physical in nature. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Harm to the child in the future and whether a parent is able to eliminate the harm is also considered under the first prong. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001).
A parent's substance abuse alone cannot support a finding under the first prong, rather the focus is on the risk of future harm to the child and not on the harm from prior substance use. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013); N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 494 (App. Div. 2014). If there was no actual harm in the past, the first prong can still be satisfied with proof, of imminent danger or substantial risk of harm. A.L., supra, 213 N.J. at 23. A court does not have to wait until a child is "'irreparably impaired by parental inattention or neglect'" before it acts, ibid. (quoting In re Guardianship of D.M.H, 161 N.J. 365, 378 (1999)), in response to a parent's inability to provide even minimal parenting to her child. D.M.H., supra, 161 N.J. at 379.
Tina's drug use caused no physical harm to Tyler at birth, but still exposed Tyler to a substantial risk of harm because she was and remained unable to address her drug addiction or cognitive issues and is unable to provide Tyler with a secure home. The undisputed impact of Tina's cognitive limitations coupled with her substance abuse provided the trial court with sufficient, credible evidence to support the judge's conclusion that the first prong was met because Tyler's safety, health and development would be endangered by placement with Tina because of her inability to provide a safe and stable home. The experts stated because of her unmitigated drug use, which enhanced her cognitive limitations, Tina could not properly and safely care for herself and certainly could not care for Tyler.
As to the second prong, Tina argues the Division did not assist her with being able to correct the threat of harm to Tyler by assisting her in securing safe housing. The Division asserts Tina's inability to help herself and complete drug treatment resulted in Tyler spending his "entire life" in foster care. Since Tina has not been able to care for Tyler in the past or the foreseeable future, the Division and Law Guardian argue that delaying Tyler's permanent placement will only add to the harm. The Law Guardian adds that Tina "has demonstrated an inability to remain drug free." In addition, placing Tyler in Tina's care would be dangerous since Tina can barely take care of herself.
Under the second prong, the Division has the burden of proving by clear and convincing evidence "not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348. Alternatively, the Division can show that a parent is "unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Ibid.
This prong may be satisfied by proof of "parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home . . . and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child." Id. at 353.
A child should not have to wait for a parent to complete good faith efforts to be capable of parenting. The law requires that children obtain permanency now because "[t]hey have already waited far too long." N.J.S.A. 30:4C-15; 42 U.S.C.A. 301, 671(16), 675(5) (A) (ii); N. J. Div. of Youth & Fam. Serv. v. C.S., 367 N.J. Super. 111, 116. (App Div.), cert. denied, 180 N.J. 456 (2004). The children's need for permanency and the legal policy to provide it expeditiously can only yield to a parent who is making a diligent effort to be reunited with a child, but who needs a reasonable period of time to complete her efforts. See N. J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 257-259 (App. Div. 2005).
However, substandard living conditions alone are not enough to satisfy the second prong. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd, 74 N.J. 196, (1977). The conditions must place a child in imminent danger of impairing the child's physical or mental health. N.J.S.A. 9:6-8.21(c)(4). Where the conditions in a house are not the result of poverty, but instead are the result of parents' inability to avoid safety and health risks to which they exposed their children, harm can be found in the potential harm that such filthy and dangerous conditions could create. This inability supports a finding that a parent failed to exercise a minimum degree of care in supplying the child with adequate shelter.
Proof of fault or malice is not required. The second prong can be satisfied by clear and convincing evidence of a cognitively disabled parent's inability to "meet [] the child's needs", without continuous assistance, due to "serious and debilitating illnesses from which [the parent] suffered. A.G., supra, 344 N.J. Super. at 436-37, 441 (finding termination appropriate where a parent with psychiatric disability would require full-time supervision); In re Guardianship of D.N., 190 N.J. Super. 648, 654 (J. & D.R. Ct. 1983) (holding the Division did not have to provide the twenty-four-hour supervision necessary to help mentally disabled individuals parent their child).
The unrefuted, expert opinion evidence considered by the court clearly supported the judge's finding Tina's substance abuse and cognitive limitations prevented her from caring for Tyler now or in the future. Her cognitive issues combined with her substance abuse had brought her to the point where she presented a risk to herself and any child in her custody. Without any hope for improvement, the judge properly found Tina presented a continuing risk of harm to Tyler, which Tina could not, unfortunately, remediate. In addition, the unrefuted evidence clearly and convincingly supported the conclusion that removing Tyler from his resource mother would only add to his harm.
We are satisfied the court relied on substantial credible evidence in finding the Division satisfied the second prong as Tina is unable to overcome the impact of her drug addiction, and cognitive disabilities and would not be able to parent and provide a stable home for Tyler and the delay in securing permanency would only add to the harm. N.J.S.A. 30:4C-15.1(a) (2).
Tina next argues the Division failed to provide reasonable services and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a) (3). She claims the Division failed to advocate for her and find her suitable inpatient programs after she was not accepted to one program. In addition, she states the Division failed to make sure she had the specific services recommended for her: psychiatric medication and a neurological evaluation. The Division admitted not sending Tina for a neurological evaluation and argues it does not need to act "perfectly" but only needed to make "'reasonable efforts.'" In addition, the Division claims even if she was referred for a neurological evaluation, she likely wouldn't have availed herself of the referral. Furthermore, the Division provided Tina with "various services, including referrals for substance abuse evaluations and inpatient and outpatient treatment, visitation, psychiatric, psychological and bonding evaluations, as well as parenting skills training." The Law Guardian echoes the Division's arguments and also adds that the Division fulfilled its obligation to consider alternatives to termination by assessing relative placements.
The third prong requires the Division to undertake "reasonable efforts" to provide necessary services to help a parent to correct the circumstances which led to the removal, and requires the court to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a) (3).
Title 30 defines "reasonable efforts" as
attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
[N. J.S.A. 30:4C-15.1(c).]
The diligence and reasonableness of the Division's efforts on behalf of a parent are not measured by their success. D.M.H., supra, 161 N.J. at 393. The efforts must be assessed on an individualized basis based on the circumstances. Ibid. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid. However, there are certain factors that may suggest that additional Division efforts to reunite a family are no longer reasonable, such as parents who do not engage in services or parents with mental illness who cannot benefit from services. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. at 610.
We concur with the trial court's finding that the Division made reasonable efforts by providing numerous services to Tina. The record clearly indicates Tina failed to complete almost all of the services provided to her and she did not follow the recommendations of the medical professionals who attempted to help her. It was reasonable to require Tina to first address her drug addiction before proceeding to undergo psychiatric evaluations and treatment. The medical professionals stated Tina's cognition was impaired because of drug use, making it logical to mitigate those self-induced effects before diagnosing or treating other impairments. Her behavior indicated that she could not benefit from the services which were designed to address the Division's concerns which led to Tyler's removal.
Tina also argues the Division failed to investigate Tyler's alleged Native American heritage by timely notifying the tribe as required by the federal Indian Child Welfare Act (Act). 25 U.S.C.A. § § 1901-63 (1982). Additionally, she argues the court erred by characterizing this as a procedural issue instead of as a substantive issue. We disagree.
First, we reject Tina's argument that proof of compliance with the Act is necessary satisfy any of the prongs under the "best interest" test. That argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). Second, the record supports the judge's conclusion that the Division complied with the Act's requirements.
The Act states
it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
[25 U.S.C.A § 1902.]
In addition, the Act requires in state court proceedings involving an Indian child, "the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." 25 U.S.C.A. §1912(a). "The purpose of giving notice is to give the Indian tribe the opportunity to determine whether the child is an 'Indian child' as defined by the [Act], and, if so, to intervene in the termination proceeding." N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363, 369 (App. Div. 2015) (citation omitted); In re Guardianship of J.O., 327 N.J. Super. 304, 315 (App. Div.) (citation omitted), certif. denied, 165 N.J. 492 (2000).
An "Indian child" is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C.A. § 1903(4). "Indian tribes have exclusive authority to determine who is a member or eligible for membership in a tribe." K.T.D., supra, 439 N.J. Super. at 369 (citation omitted).
If a child is an "Indian," the termination of his or her parents' rights cannot be ordered without "a determination, supported by evidence beyond a reasonable doubt . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C.A. § 1912(f). The Division must also establish that it provided remedial services but that those services were not successful. 25 U.S.C.A § 1912(d).
The Act also includes provisions to make sure there are "mechanisms for challenging placements that did not conform to the Act's requirements, 25 U.S.C.A. § 1914, facilitating the return of Indian children to their parents, 25 U.S.C.A. § 1916, and calling for Indian children, whenever possible, to be placed in an Indian environment, 25 U.S.C.A. § 1915." In re Adoption of Child of Indian Heritage, 111 N.J. 155, 168 (1988). In addition, there is a provision to transfer the case to a tribal court, 25 U.S.C.A. § 1911(b), but if the child "had never lived on an Indian reservation and had no contact with a tribe or tribal member" there is no reason to transfer the case to a tribal court. J.O., supra, 327 N.J. Super. at 319. --------
Other than Tina stating to a Division worker that her grandmother was part Cherokee Indian, there was no evidence that Tyler was of Native American heritage. Compare I.T.D. supra, 439 N.J. Super. at 372. Nevertheless, the Division sent notices to two Cherokee tribes in accordance with the Act. The Division corresponded with one tribe several times but the court found Tina and her family were unable to provide the necessary information in order for the tribe to ascertain whether Tyler was of Native American heritage.
However, even if Tyler was an "Indian" child, the court's termination of Tina's parental rights was consistent with the Act. The court considered two experts' testimony regarding Tina's unfitness which would threaten Tyler's health and safety. In addition, the court found the Division provided services to Tina to treat her issues but those services were unsuccessful.
The court evaluated the termination of Tina's parental rights under the clear and convincing evidence standard in accordance with New Jersey law. Even if the court applied the federal Act's beyond a reasonable doubt standard, we are satisfied Tyler would be harmed if returned to Tina because of her failure to address her substance issue issues, her cognitive limitations and her inability to provide a safe and stable home. J.O., supra, 327 N.J. Super. at 320. Thus, the Division properly sent notices under the Act, Tyler's status as an Indian child was not established, but even if it were, Tyler would be harmed if returned to Tina's care regardless of the standard applied.
In sum, the trial court properly found the Division proved all the prongs by clear and convincing evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION