Opinion
DOCKET NO. A-1248-11T4 DOCKET NO. A-1249-11T4
10-23-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.F. and W.J., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF K.C.M.J., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant C.F. (Angelo G. Garubo, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant W.J. (Michael C. Kazer, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services 1 (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.C.M.J. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-49-11.
Joseph E. Krakora, Public Defender, attorney for appellant C.F. (Angelo G. Garubo, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant W.J. (Michael C. Kazer, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).
We note that the Division of Youth and Family Services is now known as the Division of Child Protection and Permanency. L. 2009, c. 16, eff. June 29, 2012.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.C.M.J. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants C.F. and W.J. appeal from an order entered by the Family Part on September 26, 2011, terminating their parental rights to K.C.M.J. We affirm.
I.
We briefly summarize the relevant facts. K.C.M.J. was born on May 5, 2007, at a hospital in Mercer County, New Jersey. Two days later, Megan Pennyacker (Pennypacker), a caseworker with the Bucks County Children and Youth Social Services Agency (BCCYS) in Pennsylvania, contacted the Division of Youth and Family Services (Division) and reported that the BCCYS had an open case regarding C.F. and W.J., the child's birth parents. Pennypacker reported that the BCCYS had a long history of involvement with C.F. and her children.
Pennypacker said that in addition to K.C.M.J., C.F. has six other children. The eldest child was living on her own, C.F.'s mother has custody of three of the children, and one child was living with one of C.F.'s relatives. Another child, V.J., was in foster care. W.J. is V.J.'s birth father. Pennypacker reported that, while C.F. had undergone substance abuse treatment, it was thought that she was still abusing alcohol. Pennypacker said that C.F. and W.J. had recently surrendered their parental rights to V.J.
A Division caseworker commenced an investigation of the BCCYS's report. On May 11, 2010, the Division was informed that K.C.M.J. was medically ready for discharge from the hospital. The Division concluded that C.F.'s extensive history with the BCCYS substantiated allegations of neglect. The Division effected a "Dodd removal" of K.C.M.J. and placed her in foster care.
"'A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.J., 412 N.J. Super. 593 (App. Div. 2010)).
On May 13, 2010, the Division filed a verified complaint in the Family Part against C.F. and W.J. for the protection of K.C.M.J. The court thereupon entered an order placing K.C.M.J. in the Division's care, custody and supervision. The child was placed in a resource home. The court subsequently entered orders continuing the child's placement.
While that litigation was pending, the Division provided C.F. and W.J. an array of services, with a goal of reunifying them with K.C.M.J. However, following a permanency hearing conducted on April 14, 2011, the trial court determined that it would not be safe to return K.C.M.J. to C.F. and W.J. in the foreseeable future because the reasons for the child's removal had not been remedied.
In support of its decision, the court noted, among other things, that C.F. had not participated in weekly substance abuse counseling, and W.J. failed to appear for scheduled substance abuse and psychological evaluations. The court ordered the Division to file a complaint seeking termination of their parental rights to K.C.M.J.
The guardianship trial began on September 13, 2011, and concluded on September 19, 2011. Alan Stuart Gordon, Ed.D. (Dr. Gordon) testified on behalf of the Division as an expert in psychology. Dr. Gordon had performed psychological evaluations of C.F. and W.J., as well as evaluations of the child's bonds with C.F., W.J. and with the foster parents.
Dr. Gordon opined that neither C.F. nor W.J. was fit to parent K.C.M.J. He noted that C.F. continued to consume alcohol, and she failed to complete treatment for her alcohol abuse. Dr. Gordon stated that W.J. also continued to abuse alcohol, failed to attend previously-scheduled evaluations, and had not complied with recommended services. The doctor opined that neither C.J. nor W.J. could ameliorate the harm K.C.M.J. would suffer if she were removed from her foster parents.
Andrew P. Brown III, Ph.D. (Dr. Brown) testified on behalf of C.F. as an expert in psychology and neuropsychology. Dr. Brown criticized Dr. Gordon's use of certain psychological tests and stated that C.F. had the cognitive and psychological ability to parent K.C.M.J. However, on cross-examination, he stated that if C.F. were actively drinking, she would not be capable of parenting the child. Dr. Brown also acknowledged he was not aware that C.F. failed to attend substance abuse treatment from December 2010 to April 2011.
C.F. testified that, while she had a problem with alcohol in the past, that was no longer the case. She admitted, however, that she relapsed and began to consume alcohol after V.J. was born. She relapsed again in 2011. C.F. also admitted she had received numerous referrals for substance abuse treatment. She denied using cocaine, even though there was evidence that she tested positive for cocaine use in 2011.
C.F.'s sister, S.R., testified that she was willing to have K.C.M.J. placed in her home in Maryland. She acknowledged that she received a letter from a Maryland child services agency, which informed her that she must attend an information session but S.R. claimed that she could not attend because the sessions were held in the evenings. S.R. also acknowledged that the Division had ruled her out as a placement for K.C.M.J. and she did not appeal from the Division's decision.
W.J.'s father also testified. W.J. and C.F. were living in his home. He said he had renovated his home and a room was available for K.C.M.J. He also said he drives W.J. to weekly meetings of Alcoholics Anonymous, but he observed W.J. drinking beer. He claimed he had never seen C.F. drink alcoholic beverages.
On September 26, 2011, the trial court issued a fifty-one page written opinion, in which it concluded that the Division had presented clear and convincing evidence establishing the four prongs of the test for termination of parental rights established by N.J. Division of Youth & Family Services. v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1.
The court found Dr. Gordon's testimony to be credible, noting that the facts underlying his testimony were "sound" and his opinion "well reasoned." The court rejected Dr. Brown's testimony. The court said that the facts underlying Dr. Brown's opinion did not accurately reflect the facts of the case. The court noted that C.F. "had been testing positive" for substance abuse, which was contrary to the assumptions underlying Dr. Brown's report.
The court additionally found that C.F. was not a credible witness. The court indicated that C.F.'s testimony was either "deliberately untruthful" or she was "so cognitively and perceptually impaired that she does not know what the truth is." The court further found that S.R. and W.J. were not credible witnesses.
The court entered an order dated September 26, 2011, memorializing its decision. C.F. and W.J. thereafter filed notices of appeal, and we entered an order on November 28, 2011, consolidating the appeals.
II.
C.F. and W.J. argue that the Division failed to prove all of the prongs of the test for termination of parental rights by clear and convincing evidence. We do not agree.
It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.
That standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following criteria:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
(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 [D]ivision 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).]
The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Having thoroughly reviewed the record, we are satisfied that the judge's factual findings are supported by substantial and credible evidence.
We have carefully considered the arguments raised by C.F. and W.J. and conclude that their arguments are without merit. We affirm the order terminating C.F.'s and W.F.'s parental rights substantially for the reasons stated by the trial court in its thorough and comprehensive written opinion. We add the following comments.
A. The First Prong of the Best Interests Test
C.F. and W.J. argue that the Division failed to show that K.C.M.J.'s health and development have been harmed by her relationship with them. C.F. contends that there was no evidence that she "abused or neglected" the child. W.J. asserts that while he has cognitive limitations and a substance abuse problem, there was no evidence that they affected his ability to parent the child.
We are convinced, however, that the record supports the court's determination that K.C.M.J. was harmed by her relationship with C.F. In its opinion, the court noted that C.F. had cognitive limitations which adversely affected her ability to parent the child. The record shows that C.F. had a long history of alcohol abuse and in 2011 tested positive for cocaine. As the court pointed out, C.F.'s past history with her other children also indicated that she posed a risk of harm to K.C.M.J.
In addition, the court noted that K.C.M.J. was removed from C.F.'s care shortly after her birth based on substantiated evidence of neglect, and the child remained in foster care in part because C.F.'s alcohol addiction had not been appropriately addressed, despite years of treatment. The resulting deprivation of a parent's love and nurturing care is harm under the first prong of the best interest test. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 352-54).
We are additionally convinced that the record also supports the court's determination that K.C.M.J. was harmed by her relationship with W.J. The court found that W.J. was not capable of parenting K.C.M.J. due to his cognitive limitations and alcohol abuse. W.J. argues that he never physically abused the child but K.C.M.J. was removed from her parents' care in part because of his persistent alcohol abuse.
As with C.F., the child's placement in foster care deprived her of the love and nurturing care of her father, which harmed the child. Ibid. Furthermore, W.J. minimized his use of alcohol and resisted efforts to provide him with services, which impeded the Division's efforts towards reunification and caused further harm to the child.
B. The Second Prong of the Best Interests Test.
C.F. and W.J. additionally argue that the Division failed to establish that they are unwilling or unable to eliminate the "perceived" harm to the child. C.F. asserts that, with appropriate services, she is willing and able to eliminate any such harm and provide K.C.M.J. with a safe and stable home. W.J. argues that he established parental fitness at the time of the trial. Again, we do not agree.
There is sufficient credible evidence in the record to support the trial court's finding that C.F. and W.J. are unwilling and unable to eliminate the harm to K.C.M.J. The record supports the court's finding that C.F.'s and W.J.'s efforts to address their substance abuse problems were "belated" and "unconvincing[.]" The court noted that C.F. and W.J. "spent so much time evading sobriety and not complying with their programs."
C.F. argues that Dr. Brown's testimony established that she is capable of eliminating any perceived harm to K.C.M.J. However, as we noted previously, the trial court refused to credit Dr. Brown's opinions, which the court found to be based on assumptions not supported by the facts of the case.
When sitting as the trier of fact, a court has the discretion to accept or reject all or a part of an expert's testimony. Torres v. Schipps, 342 N.J. Super. 419, 430-31 (App. Div. 2001) (citing Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993)). We are satisfied that the trial court did not abuse its discretion by refusing to accept Dr. Brown's opinions.
W.J. contends that he established at trial that he was sober, had been compliant with referrals and had secured housing and employment. Even so, the evidence showed that he continued to use alcohol and tested positive for alcohol in May and June of 2011. Moreover, Dr. Gordon testified that W.J.'s history indicates that he is unable to stop abusing alcohol, despite knowing what the results might be. The record thus supports the court's finding that W.J.'s efforts to overcome his substance abuse problems were not convincing.
C. The Third Prong of the Best Interests Test.
C.F. further argues that the Division failed to make reasonable efforts to help her eliminate the causes for the child's removal from the home. She acknowledges that the Division referred her for substance abuse treatment but did not provide a bus pass so that she could attend treatment sessions. C.F. also contends that she was improperly deprived of visitation. We disagree.
C.F. testified at trial that she was given a bus pass and she conceded that her low attendance rate at treatment sessions was not due to any difficulties with travel. In addition, C.F. was not erroneously deprived of visitation. The court reasonably conditioned visitation upon compliance with substance abuse treatment.
C.F. and W.J. further argue that the Division did not make reasonable efforts to place K.C.M.J. with S.R., and failed to consider alternatives to termination of parental rights. Again, we disagree.
The record shows that S.R. was living in Maryland, and the Division made efforts to have S.R. evaluated with the assistance of a social service agency in that state. S.R. was asked to submit an application and attend a foster parent orientation program. She did not comply with these requests. The Division thereupon sent S.R. a letter ruling her out as a potential caregiver for K.C.M.J. S.R. admitted she was aware she could take an administrative appeal from that determination, but did not do so.
While S.R. testified at trial that she wanted to care for K.C.M.J., the court noted in its opinion that S.R.'s actions indicated otherwise. The court found that S.R.'s "demeanor was less than enthusiastic." The court stated that S.R. was not genuinely interested in caring for K.C.M.J. The court concluded that S.R was not a credible witness.
We are convinced that the trial court's findings are entitled to our deference because they are based on substantial credible evidence in the record. Clearly, the trial court, having heard the witnesses and observed them testify, is better able to evaluate their veracity than an appellate court. Cesare, supra, 154 N.J. at 412 (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)).
D. The Fourth Prong of the Best Interests Test.
C.F. additionally argues that the Division failed to establish that termination of her parental rights would not do more harm than good. W.J. contends that there are no compelling reasons to terminate his parental rights.
We are convinced that these arguments are entirely without merit. As the trial court explained in its opinion, C.F. and W.J. both "have a seemingly endless need for assistance." The court stated that C.F. and W.J. cannot care for themselves, and it would be in K.C.M.J.'s best interest to terminate their parental rights.
The court's findings are supported by Dr. Gordon's testimony, which the court found to be credible. Dr. Gordon noted that K.C.M.J. had formed a "very secure" bond with her foster parents, and she did not have a secure bond with either C.F. or W.J. Dr. Gordon also opined that it would be harmful to remove K.C.M.J. from her foster parents, and neither C.F. nor W.J. would be able to mitigate that harm.
We are therefore satisfied that the trial court correctly determined that the Division had presented clear and convincing evidence on all four prongs of test in N.J.S.A. 30:4C-15.1(a) for termination of parental rights. We therefore affirm the court's order terminating C.F.'s and W.J.'s parental rights to K.C.M.J.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION