June 7, 2007
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.X.P., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FG-06-18-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2007
Before Judges Lisa and Holston, Jr.
Defendant, S.P., appeals the Family Part's July 17, 2006, judgment of guardianship, whereby S.P.'s parental rights to her daughter, C.X.P., were terminated and guardianship of C.X.P. was awarded to the New Jersey Division of Youth and Family Services (Division). We affirm substantially for the reasons expressed in Judge Johnson's thorough and well-reasoned oral opinion of July 17, 2006.*fn1
At trial, the Division offered the testimony of caseworker, Robin Cowell. Additionally, Division referral response reports and contact sheets, a parental fitness evaluation, psychological and bonding evaluations, a psychiatric evaluation, and Division rule-out letters were admitted into evidence. S.P. did not testify or present any evidence in refutation of the evidence presented by the Division.
The Division first became involved with S.P. when she was seventeen years old and two months pregnant with C.X.P. S.P. was picked up by the police for a curfew violation. The Division opened a case to provide parenting classes and prenatal care to S.P. S.P. gave birth to C.X.P. on July 22, 2004.
S.P. and C.X.P. initially resided with J.C., S.P.'s boyfriend, who S.P. initially named as C.X.P.'s father. As a result of a domestic violence incident between S.P. and J.C., S.P. and C.X.P. left J.C.'s house and went to live at S.P.'s mother's house. However, the Division determined that S.P.'s mother's house was not appropriate for S.P. and C.X.P., because the house was a rooming house where several unidentified men resided and there was no bedroom for S.P. or the baby to sleep.
In October 2004, the Division filed a complaint for custody of the two minors, S.P., who was still age seventeen, and C.X.P., who was then three months old. In November 2004, S.P. and C.X.P. were placed at Covenant House Shelter. Less than a month later, S.P. left the shelter with C.X.P. despite being told that she could not. When S.P. and C.X.P. were located, the Division placed mother and baby in two separate relative placements. C.X.P. was placed with a cousin but was removed when a burn mark was found on C.X.P.
On December 15, 2004, S.P. was referred for domestic violence counseling at the Cumberland County Women's Center, parental classes at Fam-Care, and anger management counseling. She was referred to the Robin's Nest "On My Own Program," which assists teenaged mothers with housing assistance, schooling and parenting skills. She did not take advantage of these services.
On January 2, 2005, Dr. Norman D. Schaffer, a psychologist, completed a parental fitness evaluation of S.P. Dr. Schaffer concluded that S.P. showed difficulty relating to others and that parenting skills training would be useful to S.P. However, he concluded individual therapy would not be useful to her because she expects the worst from others and does not think she needs help.
In January 2005, S.P. turned eighteen, left her foster placement, and moved in with J.C., where she remained until J.C. learned that paternity testing eliminated him as C.X.P.'s father. As a result, J.C. threw S.P. out of his home.
Between February and April 2005, S.P. failed to attend domestic violence counseling or parenting classes and refused to comply with counseling because she did not feel it was necessary. The Division scheduled an appointment with the Bridgeton Housing Authority to assist S.P. in obtaining appropriate housing but she failed to attend the appointment.
Cowell testified that S.P., in addition, had not complied with alcohol and substance abuse evaluations, did not have stable housing, was not employed, and declined to inform the Division where she was residing.
On April 25, 2005, a factfinding hearing was held before the court but S.P. did not appear. As of May 18, 2005, S.P. attended one counseling session but stated she would not attend again because there is no domestic violence in her life. On June 20, 2005, at a compliance review hearing, the court ordered the Division to refer S.P. to necessary services including housing assistance. At the August 16, 2005 compliance review hearing, which S.P. failed to attend, the Division confirmed that S.P. had not registered for parenting classes at Fam-Care, as arranged by the Division.
The caseworker also reported that S.P.'s supervised visitation with C.X.P. had been sporadic and that at some visits C.X.P. cried and refused to go to S.P. On August 17, 2005, during a supervised visit with C.X.P., S.P. expressed concern that C.X.P. might be placed for adoption because she had failed to attend parenting classes. As a result, the caseworker agreed to arrange for S.P. to begin classes in October 2005.
In October 2005, S.P. informed the caseworker that she was pregnant. The worker urged her to obtain prenatal care.
On October 24, 2005, a permanency hearing was held. The court found C.X.P. could not be safely returned to S.P. in the foreseeable future and a plan of termination followed by adoption was approved as an appropriate plan. The judge noted that services had not been completed and S.P. had not obtained stable housing or employment.
On December 14, 2005, during a visit with C.X.P., S.P. told the caseworker that she was attempting to obtain housing before her unborn child was born. S.P., as of that date, had completed parenting classes but had not completed domestic violence classes. As of March 21, 2006, S.P. either missed or was late for several scheduled appointments with the housing authority.
After two missed psychological appointments, on April 4, 2006, Dr. Barr conducted a psychological evaluation of S.P. and a bonding evaluation of S.P. with C.X.P. He also conducted a bonding evaluation of C.X.P. with her current caretakers.
Dr. Barr reported that formal psychological testing of S.P. revealed significant degrees of interfering psychopathology, which caused S.P. the inability over a consistent period of time to develop a stable external lifestyle. Dr. Barr reported that the prognosis for S.P.'s participation in services is poor and recommended a psychiatric evaluation to determine whether psychotropic medication would address S.P.'s paranoid ideation and suspiciousness.
Based on his bonding evaluation of S.P. with C.X.P., Dr. Barr found S.P.'s actions directly induced stress on C.X.P. He found a disorganized attachment existed between S.P. and C.X.P., which did not support reunification of C.X.P. with S.P. Dr. Barr's bonding evaluation of C.X.P. with her foster mother indicated a positive and secure attachment existed between them, which supported adoption.
On April 10, 2006, S.P. gave birth to a son, J.P. The Division filed a verified complaint requesting custody, which was granted by the court. In May 2006, the Division was advised by medical personnel treating J.P. that it appeared he had symptoms of fetal alcohol syndrome. The Division arranged for an alcohol and substance evaluation of S.P. for June 7, 2006 but S.P. refused to undergo an evaluation and she did not comply with rescheduled evaluations as of the trial date.
On May 24, 2006, a psychiatric evaluation of S.P. was conducted by Dr. Eileen O'Connor. Dr. O'Connor diagnosed S.P. with post traumatic stress disorder, paranoid disorder and borderline personality disorder. The doctor opined that S.P. was unable to care for herself or her child. She recommended psychotherapy and medications, but she did not think S.P. would comply.
The Division investigated several maternal family members as potential relative caretakers for C.X.P. The mother of S.P. was ruled out because of her substantial history with the Division. The Division also ruled out maternal relatives C.J., C.P. and F.C. for reasons set forth in the rule-out letters, due to criminal histories and substantial child neglect.
Cowell testified that as of the trial date, S.P.'s visitation with C.X.P. remained sporadic and that she often showed up late. She further stated that during visits, S.P. often did inappropriate things in front of C.X.P., and C.X.P. often would play on her own rather than interact with S.P. Cowell also testified that S.P. did not have stable housing or employment and refused to give the Division any information about her residential arrangements.
Cowell testified that C.X.P. had been in foster placement since she was only three months old and had resided in the current home for approximately a year. Cowell stated that her current caretakers had expressed their desire to adopt C.X.P. and that she appeared to be thriving in their care. The Division's plan for C.X.P. was adoption by her current resource home.
After carefully considering the evidence and the testimony presented, Judge Johnson in a thorough oral opinion, comprised of forty transcribed pages, found that the Division had clearly and convincingly satisfied the four-prong standard for termination of parental rights as set forth in N.J.S.A. 30:4C-15.1. On July 17, 2006, Judge Johnson entered a final judgment terminating S.P.'s parental rights to C.P. and awarded guardianship of the child to the Division.
Defendant presents the following arguments for our consideration:
SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST IN SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
(B) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILD.
(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO S.P.
(D) THE COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
We begin our inquiry by restating the applicable legal principles in light of the decision rendered by Judge Johnson and the ultimate conclusion that he reached.
The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); NJDYFS v. A.W., 103 N.J. 591, 599 (1986). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); A.W., supra, 103 N.J. at 599. Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed. 2d at 610.
When the child's biological parent resists termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parent is fit, but whether he or she can become fit to assume the parental role within time to meet the child's needs and "cease causing their child harm." Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.
The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:
(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).]
These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. K.H.O., supra, 161 N.J. at 348. In reviewing a trial judge's findings, the appellate court is obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon its opportunity to see and hear the witnesses. State v. Johnson, 42 N.J. 146, 161 (1964). As a reviewing court, we are bound by the trial court's findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998).
As to the first prong of the statutory test, the court found that C.X.P. had been endangered because S.P. has not had appropriate housing for C.X.P., nor did she properly care for her daughter when she was in a mother/child shelter, where she could have had parental skills training and received help in obtaining housing. The court noted that one of the placements the Division made for her, in addition to the Covenant House Shelter, was to the Robin's Nest On My Own Program. The court iterated that S.P. ran from the shelter and after being placed in her cousin's home, "chose her [former] boyfriend over the care of her child." The judge also found S.P. placed her child's safety and development in danger by her failure to work with the Division to try and better herself and obtain housing and employment to insure the safety of her child.
As to the second prong, the judge found S.P. had failed to correct the circumstances that led to C.X.P.'s removal and that she will continue to endanger the child's safety, health and development. The judge further found that S.P.'s failure to find suitable housing and to obtain employment to achieve the financial ability to care for C.X.P. evidenced an inability or unwillingness to eliminate the harm facing her child. The court noted that S.P. did not take advantage of the services provided to her, except to attend parenting classes after the third or fourth referral by the Division.
The judge further found that C.X.P. had been in foster care for all but three months of her almost two years of life. Therefore, delay in permanent placement would add to the harm of the child. The court concluded C.X.P. needs a safe and secure place to live and that is being provided by her resource parents. The court adopted Dr. Barr's opinion that separating the child from her resource parents, because of the secure attachment she now has to those parents, would cause serious enduring psychological harm to the child.
As to the third prong, the judge found the Division made reasonable efforts to provide services to help S.P. correct the circumstances that led to C.X.P.'s placement outside the home. The judge enumerated those services as including domestic violence counseling, housing assistance, parenting classes, the Robin's Nest On My Own Program, psychological and psychiatric counseling, pre-natal care for her newborn child, and scheduling of a drug and alcohol evaluation.
The court also indicated that it had considered alternatives to termination of parental rights by placement with various relatives, who had been ruled-out for various reasons, after investigation by the Division. A cousin was ruled out because of a substantiated burning of the child. The maternal grandmother was ruled out because of DYFS' involvement relative to her raising of S.P. A maternal aunt was also explored but ruled out because of her close relationship to S.P.'s cousin. S.P.'s former boyfriend, J.C., and his parents were explored for placement. They declined after learning J.C. was not C.X.P.'s father. Additionally, there were domestic violence and criminal charges in their backgrounds.
As to the fourth prong, the judge, relying on Dr. Barr's bonding evaluations, found that termination of parental rights would not do more harm than good. The harm, to the contrary, "would be if the child were separated from her resource parent[s]."
We are in agreement with the findings and conclusions of Judge Johnson. The Division has proved by clear and convincing evidence that termination of parental rights of S.P. to C.X.P. is in the best interest of C.X.P. under the N.J.S.A. 30:4C-15.1(a) four prong statutory test.