Opinion
DOCKET NO. A-2628-11T2
05-02-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent v. L.M.B.-S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.S. and B.S., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.S. and B.S. (Charles Ouslander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Espinosa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-31-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A.
Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.S. and B.S. (Charles Ouslander, Designated Counsel, on the brief). PER CURIAM
Defendant L.M.B.-S. appeals from an order that terminated her parental rights to her two minor children, J.S. (Jenna), born in 1998, and B.S. (Brad), born in 1999. We affirm.
Fictitious names are used to protect the privacy of the children.
The Division filed a complaint for guardianship in March 2010, seeking to terminate defendant's parental rights to Brad and Jenna. In addition to the two minor children, defendant and her late husband, H.E.S. (Henry) are the biological parents of two older children, D.S. (Dean), born on April 22, 1992, and E.S. (Erin), born on August 26, 1993, who were not subject to the underlying guardianship action.
Termination of parental rights is warranted when the Division establishes by clear and convincing evidence that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [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); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]
Although defendant consented to a finding that she was unable to care for either child in January 2009 and acknowledged her continuing inability to care for them a year later, she argues in this appeal that the State failed to prove any of the four prongs of the best-interests test by clear and convincing evidence.
The trial was conducted on various dates in March, June, August and September 2011. Three witnesses testified at the guardianship trial: the Division caseworker, Michelle Johnson; a psychologist retained by the Division, Dr. Ronald Gruen, who conducted psychological and bonding evaluations; and defendant's daughter, Erin. Defendant did not testify or offer any evidence to refute the evidence presented by the Division. In her oral decision, the trial judge noted that she found Dr. Gruen's testimony credible. She found that all four prongs of N.J.S.A. 30:4C-15.1(a) had been proven by clear and convincing evidence and that it was in the best interests of Brad and Jenna to have the parental rights of defendant terminated. Consequently, she entered an order in November 2011 that terminated defendant's parental rights.
As a threshold matter, we note that the Family Part possesses special jurisdiction and expertise in guardianship actions. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, great deference is afforded the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). This is particularly true when findings are based on "the trial court's credibility determinations." M.M., supra, 189 N.J. at 279. We "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104; see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).
This family first came to the Division's attention in July 2008 when Henry's sister, S.S. (Sandra) called to seek financial assistance to care for the children. Henry had moved from Maryland with Brad and Jenna to live with Sandra in October 2007. However, after suffering a series of strokes, Henry required nursing home care. Because his Social Security income was transferred to the nursing home, it was no longer available to support the children, and Sandra lacked the financial ability to support the children. The Division provided financial assistance to Sandra and counseling therapy for Brad and Jenna.
Dean and Erin continued to live with defendant in Maryland until January 2008, when they joined Henry and the children.
In July 2008, the Division contacted defendant, who had remained in Maryland and was homeless. The Division advised that it would be seeking custody of Brad and Jenna. Although defendant indicated she wanted to have the children returned to her, she acknowledged that she was unable to provide the children with stable housing at the time.
The Division learned from Sandra that defendant had "a long history of substance abuse[,]" had worked as a prostitute, and after being evicted, was living on the porch of her house in Maryland. The Division filed a verified complaint in August 2008, seeking to obtain care, custody, and supervision over Brad and Jenna. Henry died shortly thereafter and, as a result, he was dismissed from the complaint.
In the autumn of 2008, orders were entered that placed and then continued the children under the care, custody, and supervision of the Division, the court having found defendant "unable to provide stable housing." Defendant was ordered to obtain stable housing and attend both substance abuse and psychological evaluations. Defendant was required to identify the names and addresses of relatives who could be assessed for placement of the children. She was permitted supervised visitation. The Division was ordered to provide transportation assistance to defendant to attend visits and services and to attempt to coordinate evaluations with her visits. The court also required the children to complete psychiatric evaluations and receive counseling services.
In January 2009, defendant waived her right to a fact-finding hearing, admitting that "[a]t the time of removal, [she] was not able to provide care or housing for the children and [was] presently not in a position to care for the children . . . and . . . that these acts or omissions constitute a family in need of services." The children continued in the care, custody, and supervision of the Division. Defendant was ordered once again to obtain stable housing, to comply with the Division's treatment referrals, and to notify the Division of possible placements for the children. She was permitted supervised visitation.
In January 2009, the Division referred defendant to the Child Protective Services, Department of Social Services, in Prince George's County, Maryland for interview and assessment. Defendant reported to the interviewer that she had started using "crack" cocaine the prior year, smoked it every week with her friends, on and off, and had last used it eight months before the interview. She was referred for a substance abuse assessment and subsequently to a program designed to last six to nine months that included individual therapy, education in life skills and parenting, and required attendance at Alcoholics Anonymous or Narcotics Anonymous meetings three times per week (the CAP program).
In March 2009, another order was entered, continuing the Division's care, custody, and supervision of Brad and Jenna. Yet again, defendant was ordered to obtain stable housing, to comply with the Division's treatment referrals and to notify the Division of possible placements for the children. She was permitted supervised visitation. Although she still lacked stable housing, defendant remained in Maryland. The court permitted her to appear by telephone at the next hearing and directed her to provide contact information and to inform the Division regarding her bus transportation needs so the Division could obtain bus tickets for her. The Division was ordered to arrange for an interstate evaluation of defendant's housing once defendant obtained a home to evaluate. The court also ordered additional services for the children.
During this time, the children resided with Sandra, and the Division's primary goal was reunification. Although the Division changed its position to recommending that custody should be given to Sandra in May 2009, it continued to encourage defendant to work toward reunification. The Division's position changed once again, in August 2009, when it placed Brad and Jenna into foster care upon learning that the children had been left at Sandra's home, unsupervised, for two days.
In September 2009, the trial judge granted defendant a 90-day extension to locate housing. On October 29, 2009, two days after she had tested positive for cocaine use, defendant attended a family team meeting in New Jersey and stated she had "been promised housing in Maryland if [she could] secure the deposit." The Division agreed to provide the deposit if defendant submitted written documentation of the agreement and established her financial ability to care for the children in Maryland.
Pursuant to N.J.S.A. 30:4C-61.2(a)(2) and N.J.S.A. 9:6-8.54(b)(2), Family Part judges must conduct a permanency hearing within twelve months after the child has been in placement to "determine whether the family will continue towards reunification or whether an alternative plan must be adopted." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 400 (2009) (citing N.J.S.A. 30:4C-61.2).
In October 2009, the Division learned that defendant had "not been attending treatment" and had missed nineteen of the last sixty-five sessions. Defendant tested positive for cocaine in October 2009 and again in November 2009.
In January 2010, defendant told the Division that she wanted to move to New Jersey. The Division advised defendant, that, because Brad and Jenna had been in placement for sixteen months already, it was possible that the court would not deviate from the current permanency plan of having her children adopted. The Division advised defendant to "have a plan in place" before she arrived and informed her that the Director of the Board of Social Services had informed the Division that she would be eligible for emergency assistance.
Defendant's failures to attend treatment continued. In February 2010, the Division learned that defendant had missed thirty-two sessions of treatment, and thereafter, the trial judge found the Division's permanency plan to terminate defendant's parental rights and pursue select home adoption for Brad and Jenna "appropriate and acceptable," based on defendant's inability to obtain housing, recent drug use, and failure to attend treatment. The court ordered the Division to file the guardianship action.
Brad was eleven years old at the time of trial. Although Brad was initially placed into a foster home, he was removed at the foster parent's request and placed into an agency-run therapeutic foster home. Jenna was thirteen years old at the time of trial. Jenna was placed into foster homes as well but was moved to a shelter due to behavioral problems and resided in a therapeutic foster home when the trial began. Jenna specifically "request[ed] that she not return to the home of her mother."
Under the first prong of the best-interests standard, the Division must clearly and convincingly establish that defendant's parental relationship endangered the safety, health, or development of her children. N.J.S.A. 30:4C-15.1(a)(1). More specifically, the record must establish that the endangerment, if left uncorrected, would "likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. at 337, 352 (1999). To this end, presumptive and speculative effects are insufficient; clear and convincing evidence must be produced. G.L., supra, 191 N.J. at 608.
Harm, in the context of the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "[T]he focus [of this prong] is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The Court has recognized that "the attention and concern of a caring family is 'the most precious of all resources.'" In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid.; see also K.H.O., supra, 161 N.J. at 352-54.
When first contacted by the Division in July 2008, defendant advised that she was unable to provide stable housing for the children. In January 2009, she stipulated that she remained unable to care for the children. Over one year later, she acknowledged her continuing inability in a letter written to the court dated February 19, 2010:
I want the best for [Brad and Jenna]; however, at this time I don't feel that I can provide it to them because of my circumstances.
I have no desire to give my children up nor am I giving up on them. . . .
I realize that I've made mistakes and I would appreciate more time to correct my mistakes so I can be a better parent than I was before.
Despite the passage of several years, defendant remained unable to care for her children at the time of trial.
There was also compelling evidence that defendant posed a harm to the children when they were in her care. Erin, who was seventeen years old at the time of trial, testified on behalf of Brad and Jenna at trial and provided the following details. Defendant would leave for a week at a time, "on what she called her vacations[,]" locking Henry and the children in the house as she left. When she was fourteen, defendant gave Erin alcohol and took her to a "drug farm," where she observed defendant and her friends doing drugs. Defendant's friends fought in the house and one of her friends made Erin feel uncomfortable by kissing her neck and saying: "Oh, you're my baby[.]" Defendant made her children "constantly" clean "over and over" until "2:00 in the morning[,]" cleaning the floor "square by square on [their] hands and knees." Water and electricity were turned off due to defendant's failure to pay the bills. Defendant failed to provide the children with adequate food. She locked the refrigerator and food cabinets. Brad would bring food home from school to eat. Defendant beat her children's hands with paint sticks wrapped in duct tape. Erin stated that she sought help from a school counselor, who called Social Services, but that Social Services did not take any action. Dean and Erin came to live with Sandra after defendant dropped them off at a friend's house, saying that "she would be back in a couple hours[.]" Defendant never returned, and her friend took Erin and Dean to a "group home" where Sandra eventually picked them up.
Erin also testified that defendant abused Henry, who was ailing, in the minors' presence.
The Division presented the expert testimony of Dr. Ronald S. Gruen, who testified about the results of comprehensive psychological and bonding evaluations that he performed on Brad and Jenna in May 2010. Dr. Gruen testified that Brad and Jenna struggled emotionally because defendant came in and out of their lives.
On appeal, defendant argues that there was no corroborative proof to support Erin's allegations. There was in fact corroboration for Erin's testimony that defendant left her children alone and unsupervised. Johnson testified that Child Protective Services in Maryland had advised the Division that "there was an open case" against defendant for neglect based on a report that defendant left her children alone. However, corroboration was not required if the court found Erin's testimony credible, which was the case here. Defendant also maintains that the trial court's decision was based on defendant's poverty-driven "lifestyle decisions." Neglect of the children's basic needs, exposing them to drug use and physical abuse cannot be legitimized by characterizing such conduct as "lifestyle decisions." The first prong was amply satisfied.
The second prong of the best-interests standard "relates to parental unfitness." K.H.O., supra, 161 N.J. at 352; see also N.J.S.A. 30:4C-15.1(a)(2). The inquiry is "not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). The second prong may be satisfied by signs "of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home" or support for the child. K.H.O., supra, 161 N.J. at 353. "Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007). We have observed that it "would be a misapplication of the law" to "[k]eep[] the child in limbo, hoping for some long term unification plan[.]" N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); see also N.J. Div. of Youth & Family Servs. v. L.J.P., 428 N.J. Super. 451, 483-84 (App. Div. 2012).
It is undisputed that, four years after Henry took the children to New Jersey, defendant had still failed to provide safe and stable housing for her children. She claimed her poverty precluded her from moving to New Jersey because she would have to establish six-months residency before applying for housing assistance. The Division explained to her that if she moved to a shelter in New Jersey, she could engage in reunification efforts here. Yet, her financial circumstances did not preclude her from moving to a shelter in the District of Columbia, a choice that made it more difficult for her to be a presence in her children's lives.
Dr. Gruen, who conducted a clinical interview with defendant, testified that defendant was "avoidant" and refused to "take responsibility" for her prior parental deficiencies. For example, Dr. Gruen testified that defendant downplayed her prior drug use, making it "very difficult to remediate" and "become worthy of being a parent." Dr. Gruen opined that defendant suffered from "major depression," which raised concerns about her ability to engage in treatment, and exhibited "dependent personality traits." In the summary of his report, Dr. Gruen concluded that defendant "is not ready to regain custody of her children" and "is unlikely to be ready in the foreseeable future."
On appeal, defendant argues that "parental lifestyle decisions that are the result of poverty [do] not constitute parental 'unfitness' under the second prong[,]" and cites A.W., supra, 103 N.J. at 605-07 for support. She contends that Dr. Gruen was biased, but notes that he did not find that defendant "had any type of cognitive limitation or psychological disorder that would preclude her from being able to parent." Finally, defendant maintains that she "complied with every" referral.
As a preliminary matter, defendant did not fully comply with her treatment; she missed numerous sessions and tested positive for cocaine. Even if her failure to obtain employment and housing could be attributed, at least in part, to her poverty, her failure to remedy other issues and her substance abuse cannot. The fact that she does not suffer from any type of cognitive limitation or psychological disorder that would limit her ability to parent supports, rather than refutes, a finding that she has been unable or unwilling to eliminate the harm to her children. In short, her unfitness as a parent cannot be discounted as an unavoidable consequence of her poverty.
As a result of defendant's failure to make meaningful progress over the course of the years since her children left her custody and the untimely death of their father, the children have lived in a state of limbo. Erin and Dean have aged out of the system. Jenna and Brad have been unable to secure permanent placement. The evidence of defendant's failures and the prolonged delay in achieving permanency for the children constitutes clear and convincing proof of the second prong.
The third prong of the best-interests standard contemplates DYFS's efforts to reunify the parent and the child by assisting the parent in addressing the problems that led to placement. K.H.O., supra, 161 N.J. at 354. Such efforts include:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;However, DYFS's efforts should be measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 393.
(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).]
Caseworker Johnson testified about the Division's reunification services to defendant, including: offering to help defendant locate housing in New Jersey, providing defendant with bus and train tickets to attend visitations, and providing referrals for social services and substance abuse counseling. Caseworker Johnson also testified that the Division contacted the County Board of Social Services on defendant's behalf for the purpose of obtaining assistance with housing should she move to New Jersey.
Defendant last visited Brad and Jenna on May 4, 2010.
On appeal, defendant argues that the Division's efforts were unreasonable because the Division did not attempt to conduct "'updated' psychological and bonding evaluations." However, unlike J.N.H., supra, 172 N.J. at 478-79, where changes in circumstances warranted updated evaluations, defendant has presented no facts that demonstrate such a change. We therefore conclude that there was clear and convincing evidence that the Division made reasonable efforts to effect reunification.
Under the third prong, the Division is also required to consider alternatives to termination. Defendant's challenge to the trial court's finding that no alternatives exist lacks merit. Despite repeated orders directing her to identify relatives to be assessed as placements for the children, defendant failed to do so on a timely basis. Although defendant contends that "at the time of the trial, there were at least four family relatives who were identified as possible placement sources[,]" these relatives, who lived in distant states, had never met the children, were unaware of their needs, and were not named until the eve of trial. The Division does not fail its statutory obligation to seek alternatives when a parent "wait[s] until the eve of the guardianship trial to identify a relative who is willing to adopt." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). Thus, the record before the court supported a finding that no alternatives to termination existed.
Under the fourth prong of the best-interests standard, the Division must show by clear and convincing evidence that the termination of defendant's parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The Division need not have established that "no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, this prong requires the Division to establish that there is a greater harm in delaying the permanent plan for adoption than from the termination of ties with a child's natural parents. Ibid.; see, e.g., N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996) (finding satisfaction of the fourth prong where record reflected minor's "need for permanency" and the parent's "inability to care" for the child "in the foreseeable future").
At the time of trial, neither child had lived with defendant for approximately four years. Dr. Gruen, who conducted a bonding evaluation, opined that, although Brad and Jenna "see their mother as a friendly, positive face," neither appear "to depend on [her] for gratification of wants and needs." He characterized the relationship between mother and children as that of acquaintances. Thus, Dr. Gruen concluded that "the children would not suffer significant and enduring emotional harm if parental rights were terminated." In addition, Dr. Gruen opined that defendant was neither ready to regain custody nor likely to be ready to do so in the foreseeable future.
An important consideration under the fourth prong is the "child's need for permanency." M.M., supra, 189 N.J. at 281. As defendant argues, the children are now teenagers whose behavioral problems have resulted in placement in therapeutic homes where adoption is not a goal. Therefore, it must be acknowledged that, although adoption efforts may be pursued, success is far from guaranteed.
"[T]erminating parental rights without any compensating benefit, such as adoption, may do great harm to a child[,]" such as "when a child is cycled through multiple foster homes after a parent's rights are severed." E.P., supra, 196 N.J. at 109 (citing A.W., supra, 103 N.J. at 610-11). The harm created under such circumstances lies in the severing of "the child's psychological and emotional bond to the parent . . . with nothing substituted in its place." Ibid. Defendant argues that termination will deprive the children of "the inherent benefits of 'a mother's love'" and that the children have expressed a desire to maintain a relationship with her.
Dr. Gruen testified that, when he conducted the bonding evaluation in May 2010, defendant began by telling the children that although she comes to see them, she lacked the money for a house or the ability to care for them full-time and added that their father had taken them away from her. Dr. Gruen reported that, in response, Jenna said she was willing to wait for her mother "to get it together." Brad was sympathetic to his mother's situation and did express an interest in seeing her more often but did not express a desire for reunification. Dr. Gruen viewed Brad's responses in particular as being diplomatic and empathetic to defendant's emotional responses at the evaluation. At the time of trial one year later, Jenna no longer desired reunification with defendant. Johnson testified that, to the contrary, Jenna requested that she not be returned to defendant's care. Dr. Gruen's opinion that defendant had an acquaintance relationship with her children was unrefuted. Thus, the preservation of her parental rights presented an obstacle to the success of any adoption effort, however unlikely, while offering no meaningful parental bond or opportunity for permanence. The record clearly and convincingly showed that, on balance, termination of defendant's parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION