October 27, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
R.A.S., SR. AND N.L.D., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF R.A.S., JR. AND S.M.S, MINORS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-71-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Lisa, Sapp-Peterson and Alvarez.
These three appeals have been consolidated for purposes of this opinion. R.A.S., Sr. (R.A.S.) and N.L.D. (collectively, defendants) appeal from the December 14, 2007 order of the Superior Court, Chancery Division, Family Part, terminating their parental rights to their biological children, R.A.S., Jr. (Jr.), born August 4, 2002, and S.M.S., born August 22, 2005, and granting guardianship of the two children to the Division of Youth and Family Services (Division). The law guardian appeals from that portion of the December 14 order granting guardianship to the Division without including a provision for sibling reunification and the court's failure to permit expert testimony in this regard. We affirm.
The evidence presented at trial disclosed that the Division first became involved with the family in 2004 when it received a referral stating that four adults and one child resided in a one-bedroom apartment and were about to be evicted for non- payment of rent. The Division was unsuccessful at that time in its effort to locate the family, but received another referral involving the family one month later. The referent reported that Jr. had been treated at a local hospital for ringworms and that the child was living with his parents, who were drug users, in filthy conditions and without food. The Division assigned a caseworker, Chris Igiehon (Igiehon), to investigate the matter. Igiehon visited the apartment where the family was living and interviewed N.L.D. The allegations were not substantiated. Igiehon did, however, refer both R.A.S. and N.L.D. to a certified alcohol and drug counselor.
There were additional referrals thereafter as a result of allegations of abuse and neglect and inappropriate living arrangements. At one point, the family started living with N.L.D.'s father, T.D., but the Division objected to this living arrangement because of reports that he regularly abused drugs. It made arrangements for the family to move to the YMCA shelter.
On August 24, 2005, the Division learned that N.L.D. had given birth to S.M.S. on August 22, and that both mother and daughter tested positive for methadone. Despite the fact that S.M.S. was experiencing withdrawal symptoms and required further hospitalization, N.L.D. voluntarily left the hospital and reportedly returned to live with her father. Also on August 24, Igiehon went to T.D.'s address. Finding no one home, he spoke to the first-floor tenant, who advised that T.D. "resided on the second floor with a relative and her son[.]" R.A.S. was incarcerated on a burglary charge at the time.
Igiehon met with N.L.D. later that day. N.L.D. told Igiehon that she used Percocet and heroin five months before S.M.S. was born, but said she was unaware of her pregnancy until three or four months into her term. Igiehon also observed bruising and scratches on Jr.'s legs, which N.L.D. could not explain. Jr. wore clothes that were too big for him and appeared dirty. Igiehon believed that abuse and/or neglect had been substantiated and removed Jr. from N.L.D.'s custody on an emergency basis.
Two days later, the Division filed an order to show cause and verified complaint seeking temporary custody of Jr. and S.M.S. The court granted the Division temporary custody of the children. Jr. was placed in the first of what would ultimately turn out to be five different foster homes over the next two years leading up to the guardianship trial. S.M.S. remained hospitalized for almost two months and, upon her discharge on October 11, 2005, she was placed in her current foster home.
After the Division removed Jr. from T.D.'s home, N.L.D. briefly lived with her maternal grandmother until her grandmother was told that no one else could reside in her residence because the apartment complex was age-restricted. On October 25, 2005, with the Division's assistance, N.L.D. was admitted to an eighteen-month drug rehabilitation program at Straight and Narrow in Paterson. She was discharged from the facility on February 10, 2006, after she violated program rules by smoking. During her brief residency in the program, she was voluntarily admitted to the psychiatric floor on two occasions for depression and anxiety. While on the psychiatric floor, N.L.D. reportedly expressed her preference for this floor and viewed this location as "relaxing at the hospital" and was pleased that by being on the psychiatric floor she did "not have to go to groups and make all the meal movements."
The discharge summary from Straight and Narrow reported that N.L.D. "did not appear motivated toward recovery [and] demonstrated poor anger management skills, poor coping skills, and low frustration tolerance[.]" It also contained a detailed description of her family background and her history of drug use. After her discharge, through the Division's efforts, N.L.D. temporarily lived in a Rahway motel.
On May 2, 2006, N.L.D. underwent a court-ordered psychological evaluation performed by Dr. Andrew Brown, Ph.D. During the examination, she detailed her lengthy history of substance abuse, but indicated that she had not used heroin for nearly four months. She also detailed her parents' substance abuse history, which claimed both of their lives, her mother due to an overdose and, more recently, her father, because of AIDS. Additionally, N.L.D. shared her goals with Dr. Brown, which included completing drug rehabilitation, securing employment, providing daycare for her son, finding a "stable place to live, [and] just be [sic] normal again." She did not reveal any particular plan for achieving her goals.
Dr. Brown administered the Child Abuse Potential Inventory ("CAP"), and observed that N.L.D. did not present an elevated potential for child abuse, but additional tests revealed that she lacked emotional stability and feelings of worth, felt lonely and depressed, and lacked the ability to effectively utilize available resources. In his opinion, N.L.D. presented a "considerable potential to engage in poor parental judgment which could result in acts of child endangerment." He recommended that she receive parenting education, psychiatric management, individual psychotherapy, and inpatient drug treatment with after-care support. He also recommended that child visitation remain as scheduled.
The Division referred N.L.D. to Sunrise House, an inpatient treatment program with a parenting skills component. She was admitted to the program in June 2006. Also in June, the Division started scheduling N.L.D. for biweekly visitation with the children. The Division's objective was to transfer custody of Jr. and S.M.S. to Sunrise House after N.L.D. completed the initial thirty-day program. She completed the initial thirty days, but was discharged two weeks later on August 14 for non-compliance with program rules due, once again, to smoking.
From the Sunrise House, N.L.D. was temporarily housed at Eva's Woman's Shelter in Paterson while awaiting admission to another substance abuse program. On October 13, 2006, the Division learned that N.L.D. had checked herself into a hospital for depression. The Division referred her to Options Outpatient Program, where she received mental health counseling services and drug treatment. The program went well and N.L.D. attended regularly, until she began working full-time. She was discharged on January 4, 2007 for nonattendance, though the program remained open to her. The Division was unable to re-enroll N.L.D. in parenting classes because she had not completed drug rehabilitation.
On April 17, 2007, N.L.D. completed her follow-up psychological evaluation with Dr. Brown. She told Dr. Brown that she had detoxified at Sunrise House and had not used illegal drugs for the last eleven months, her longest period of abstinence. She reported attending Narcotics Anonymous meetings five nights a week, but had no sponsor. Dr. Brown made many of the same findings from his original evaluation and found that N.L.D. had not complied with recommendations he previously made a year earlier. He noted that N.L.D. was not receiving psychiatric management or psychotherapy, stopped attending outpatient treatment "because of work[,]" and was still without stable housing. He concluded that N.L.D. remained "psychologically and residentially unable to parent" and that her "prognosis for parenting is poor."
On July 31, 2007, N.L.D. attended her regularly scheduled visitation with her children. S.M.S. was unable to attend. The worker supervising N.L.D.'s visitation with Jr. reported that N.L.D. "appears to be under some un/controlled substance" and that her "motor movements were sluggish, her eye contact was unfocused, and her words were unclear at times." The worker also observed that throughout the visit, Jr. continually gave his mother hugs and told her he loved her. On September 1, 2007, Dixon received a message from N.L.D. stating that she was vacationing, but N.L.D. did not disclose her whereabouts or when she would return.
While the Division was attempting to provide services to N.L.D., it also undertook measures to assist R.A.S., who, prior to the Division's involvement with the family, had been convicted and incarcerated on drug-related charges. He was rearrested on a parole violation two months before Jr.'s birth. He had also participated in drug rehabilitation through the Opioid Maintenance Therapy/Methadone Program in Elizabeth but relapsed. Two weeks before S.M.S.'s birth, he was arrested on burglary charges and remained incarcerated for eight months at the Middlesex County Adult Correction Center (MCACC). During this incarceration, he underwent a court-ordered substance abuse evaluation and voluntarily participated in a ninety-day jail-sponsored substance abuse program. He reported that he had engaged in the recreational use of marijuana and cocaine and the regular use of heroin, three to ten bags daily.
Also during this incarceration, Dr. Brown performed a court-ordered psychological evaluation of R.A.S. Test results from the CAP Faking-Good Index indicated that R.A.S. strove to provide a "socially desirable response in order to hide negative personal characteristics." Dr. Brown opined that R.A.S.'s "history of substance abuse, anti-social activities, inadequate housing, and frequent arrests/incarcerations inspires little confidence with respect to his ability to commit and dedicate his life to parenting any child." Dr. Brown recommended anger management, parenting classes, and sustained inpatient drug abuse treatment with after-care support upon completion of a program. He concluded that R.A.S.'s prognosis for parenting was "poor" without treatment and "fair" with adequate intervention and service compliance.
In March 2006, R.A.S. was released from jail directly into the Straight and Narrow Inpatient Program. After an initial delay in child visitation, R.A.S. had regularly scheduled visits with both children while participating in the program. Six months into the program, however, the Division received notification that R.A.S. had been discharged from the program on August 11 "for breaking more than one agency rule." At the time of his discharge, R.A.S. was one week away from completing the anger management and parenting classes.
After his discharge, R.A.S. failed to contact either his parole officer or the Division. He testified that after leaving Straight and Narrow, he lived and worked in Elizabeth and resumed his participation in the Options Outpatient Program in Paterson. He did not make any effort to contact the Division. He explained that N.L.D. kept him informed about the children. The Division terminated his biweekly visitation sessions with the children, but records revealed that he apparently accompanied N.L.D. to her biweekly visitation sessions with the children from October 2006 to January 2007 at the Division's Paterson office.
At some point in January 2007, R.A.S. briefly relocated to Florida with the hope that he could secure employment. He did not advise the Division that he was going to Florida, despite the fact that he spoke to Igiehon before he left. He agreed that his decision to go to Florida was basically made in the "spur of the moment" because he was living in a shelter. His desire to relocate to Florida was also influenced by his belief that N.L.D.'s sister was going to get custody of the children and he would be available to "help out" financially as well as see the children. When he learned that Forsythe was not approved, he returned to New Jersey but did not contact the Division. Igiehon eventually found R.A.S. on February 7, at the St. Paul's Men's Center in Paterson, five days after the court had released the Division from its obligation to make any further reasonable efforts towards reunification between R.A.S. and his two children because, according to Igiehon, R.A.S. "wasn't showing up in court . . . and he wasn't participating in anything."
On February 6, 2007, the Division transferred the case to the Adoption Resource Center. In late February, Sacha Dixon became the caseworker of record. From that time until the Division's last contact with N.L.D. in August 2007, Dixon reached out to N.L.D. and contacted her "occasionally" via N.L.D.'s cell phone number to schedule visitation, which continued. Dixon had no contact with R.A.S. until the fall of 2007, after learning of his re-incarceration in August 2007. She met with R.A.S. while he was still incarcerated three months later. He told her that he would become eligible for parole in February 2008.
On March 21, 2007, Dr. John Fiorello, Ph.D., conducted a bonding evaluation of Jr. and his current foster parents in which he observed their interaction for one hour. At the time, Jr. was four years old and had been residing with his foster parents for about eight months. Dr. Fiorello reported that both parents were "very emotionally receptive" to Jr. and showed an ability to correct or ignore certain maladaptive behavior when appropriate. He observed that Jr. "clearly trusts them." Dr. Fiorello further noted that Jr. "relies on them for his safety and well-being . . . and perceives them as nurturing." During the evaluation, Jr. followed their directions and appeared to view them as his psychological parents, referring to both men as "daddy."*fn1 Dr. Fiorello concluded that Jr. had formed a secure attachment to his foster parents, giving rise to a bond.*fn2 When asked at trial what would happen if Jr. were removed from his current foster parents and placed back with either biological parent, Dr. Fiorello noted that the answer was "purely hypothetical[,]" but that it "could lead to all sorts of psychopathology. . . . At the very least it's a disruption . . . of the child's environment and routine."
On April 11, 2007, Dr. Fiorello conducted a similar one-hour bonding evaluation between S.M.S. and her foster parents. At the time, S.M.S. was twenty months old and had been living with her foster family since she was released from the hospital following her birth. S.M.S's foster family consists of a mother, father, their three biological children, and one other child whom the foster parents had adopted. During the evaluation, Dr. Fiorello observed that the parents were receptive and responsive to S.M.S.'s needs. They let her lead in play when she wanted, but redirected her appropriately. She hugged them and showed a "very strong preference" for them. Dr. Fiorello concluded that S.M.S. had formed a secure attachment to her foster parents and would not recommend removal from that home and placement with her biological parents under any circumstances.
Dr. Brown performed a bonding evaluation with N.L.D. and the children on April 17, 2007. He observed interaction and play between N.L.D. and her children. He found that S.M.S. generally avoided her mother and made several attempts to leave the room, at one point leading N.L.D. to block the door to prevent her exit. On the other hand, Jr. responded well. Dr. Brown concluded:
[Jr.] demonstrates that he has a positive relationship to his natural mother. He involves her in play activity, generally responds to her requests, is affectionate with her, and is comfortable being in close proximity to her. At the same time [S.M.S.] does not appear to display bonding with [her] mother as she does not react upon separation from her and through[ou]t the observation, [S.M.S.] is generally aloof and avoidant.
On August 9, 2007, Dr. Brown conducted a thirty-minute observation of the interaction and play between Jr. and S.M.S. He noted in his report, as Dr. Fiorello did in his testimony, that bonding evaluations between siblings cannot be conducted unless one child has become the "parentified" caretaker.*fn3 For the majority of the observation, the children played separately with toys more suited to their genders. When they did interact with each other, they exhibited no evidence of aggression, jealousy, or rivalry. Dr. Brown observed that they appeared to feel comfortable and like each other. He concluded that Jr. and S.M.S. have a "positive social attachment" which would allow them to coexist in the same household. After noting this, however, Dr. Brown wrote in the last sentence of his report:
At the same time, this social attachment between siblings in no way takes precedence over the "evidence of a healthy attachment"
(i.e., internal working model of attachment) and the "secure and positive attachment"
(i.e., sense of permanency) that [S.M.S.] enjoys with her "nurturing, caring, trustworthy caregivers" (i.e., psychological parents) as described by Dr. Fiorello in his bonding evaluations.
In addition to providing services to Jr. and N.L.D. directed towards reunification, the Division, at the direction of the court, explored alternative familial guardianship arrangements. Early in its involvement with the family, before his death, it rejected T.D.'s home because of his reported drug addiction. On November 10, 2005, the Division sent a relative interest letter to N.L.D.'s sister, Rachael Forsythe (Forsythe), who resided in Florida, but received no response at that time. The Division sent Forsythe another letter nearly one year later on October 26, 2006, to which Forsythe responded via telephone the next day. Forsythe expressed an interest in caring for the children. On November 9, 2006, the Division submitted an Interstate Compact Agreement to its Florida counterpart to conduct the appropriate investigation of Forsythe and her home. On January 31, 2007, the Division received notification that Florida Family Preservation Services disapproved placement of S.M.S. and Jr. in the Forsythe home due to the husband's criminal history.
The guardianship trial commenced on December 10, 2007, and the testimonial portion of the trial was completed the following day. The court heard testimony on behalf of the Division from Igiehon, Dixon, and Drs. Brown and Fiorello. R.A.S. also testified on his own behalf. N.L.D. did not appear. However, when the court delivered its oral decision on December 14, the court acknowledged receiving a letter from N.L.D. that indicated that "she's having a hard time getting back up here for apparently monetary reasons" and her request to the court that it schedule the matter for late January so she could attempt to secure enough money to make an appearance. This letter was undated but attached to a letter dated December 6, from Forsythe seeking reconsideration of Florida officials' disapproval of her caretaker application.
At the outset of the trial, the law guardian requested that the court entertain oral argument on the motion filed to amend the permanency placement to require sibling reunification as part of any adjudication. The law guardian proposed removing S.M.S. from her current foster home and placing her in the foster home of Jr. The court asked the law guardian to postpone argument on the motion until after the court reached the threshold determination related to termination of parental rights.
The law guardian, during cross-examination of Dr. Fiorello, extensively questioned him on whether the children should be placed together. He maintained that he would not make such a recommendation in this case. He opined:
Sibling relationships I will characterize as extremely important, second only to really child caregiver relationships. You know, if you would have asked me before these children were close [to their foster parents] I would have said try to keep them together. That didn't happen. And so we are where we are now.
He also noted that S.M.S. has important sibling relationships*fn4 with her foster siblings in addition to her potential relationship with Jr. He testified that, in any case, relationships between siblings do not override a child-caregiver attachment.
On the final day of trial, after the judge terminated parental rights and heard argument on the motion, the law guardian made her arguments for sibling reunification but did not attempt to call her expert as she had on the first day. At one point, she referenced the findings of her expert, who evaluated both children. Apparently, the expert would have testified that the children's best interests would not be served by remaining in separate homes in the event parental rights were terminated and sibling visitation could not be enforced. The court denied the motion, reasoning that due to the bonds the children had formed with their respective foster families, the children's best interests were served by remaining in their current homes for permanent adoption.
On December 14, 2007, the trial judge rendered an oral decision granting guardianship to the Division and terminating the parental rights of N.L.D. and R.A.S. The court found that the Division satisfied, by clear and convincing evidence, the criteria for termination of parental rights pursuant to N.J.S.A. 30:4C-15.1. Although the court did not order sibling reunification, the judge stated, "without question[,] as part of the order of the termination[,] I'm going to make it mandatory that sibling visitations continue."
Defendants filed a timely appeal of the decision terminating their rights. The law guardian appealed the portion of the judgment denying the motion for joint placement of the children as well as the court's ruling with respect to expert testimony on this issue.
Under A-2562-07T4, R.A.S raises the following points for our consideration:
THE APPELLATE DIVISION SHOULD REVERSE THE JUDGMENT OF GUARDIANSHIP, BECAUSE [R.A.S.] NEVER ENDANGERED HIS CHILDREN AND BECAUSE [R.A.S.] WAS WILLING TO ELIMINATE THE HARM FACING THE CHILDREN AND WILL BE ABLE TO PROVIDE A SAFE AND STABLE HOME FOR THEM. POINT II
DEFENDANT WAS DENIED DUE PROCESS AS THE JUDGE BASED HIS DECISION TO TERMINATE [R.A.S.]'S RIGHTS ON [R.A.S.]'S IMPRISONMENT, AND DID NOT GIVE ADEQUATE REASONS FOR HIS DECISION ON THE RECORD.
THE TRIAL COURT DID NOT CONSIDER [R.A.S.]'S WILLINGNESS TO ELIMINATE THE HARM AND PROVIDE A SAFE AND STABLE HOME TO HIS CHILDREN.
THE APPELLATE DIVISION SHOULD REVERSE THE JUDGMENT OF GUARDIANSHIP BECAUSE DYFS HAS NOT 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 NOT ADEQUATELY CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
THE APPELLATE DIVISION SHOULD REVERSE THE JUDGMENT OF GUARDIANSHIP BECAUSE TERMINATION OF [R.A.S.]'S RIGHTS WOULD DO MORE HARM THAN GOOD, OR, IN THE ALTERNATIVE, SATISFYING THE FOURTH PRONG OF THE "BEST INTERESTS" TEST DID NOT JUSTIFY THE TERMINATION OF PARENTAL RIGHTS.
Under A-2563-07T4, N.L.D. raises the following points for our consideration:
THE FAILURE OF THE TRIAL COURT TO PROVIDE ALTERNATE MEANS FOR APPELLANT'S PRESENCE AT TRIAL DENIED APPELLANT HER PROCEDURAL DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST 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 CHILDREN WERE 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 CHILDREN.
(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO N.L.D.
(D) THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
Finally, under A-3279-07T4, Jr. and S.M.S. submit the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING COUNSEL THE ABILITY TO PRESENT EVIDENCE AND TESTIMONY DURING THE GUARDIANSHIP TRIAL REGARDING SIBLING REUNIFICATION TO SHOW THAT GUARDIANSHIP TO D.Y.F.S. WITHOUT PROVISIONS OF SIBLING REUNIFICATION IS CONTRARY TO THE CHILDREN'S BEST INTEREST UNDER THE FOURTH PRONG OF N.J.S.A. 30:4C-15-1.
ADDITIONAL JURISDICTIONS, WITH STATUTES SIMILAR TO N.J.S.A. 9:6B-4, HAVE FOUND THAT THE TRIAL COURT HAS AN AFFIRMATIVE DUTY IN TERMINATION OF PARENTAL RIGHTS MATTERS, IF A PLAUSIBLE PLACEMENT EXISTS, TO PRESERVE SIBLING BONDS.
We have considered the points raised on appeal in light of the record and the applicable legal principles and find them to be unpersuasive. We are satisfied that the evidence clearly and convincingly establishes that the best interests of Jr. and S.M.S., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1(a), warrant termination of R.A.S.'s and N.L.D.'s parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We are equally persuaded that there is substantial credible evidence in the record to support the trial judge's ruling terminating parental rights without provisions for sibling reunification and find no error in the exclusion of expert testimony on this issue.
Parents have a fundamental right to raise their children, which presents concerns of a constitutional nature in any action to terminate that right. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 2d 551 (1972)); see also K.H.O., supra, 161 N.J. at 346. However, the constitutional protections afforded to parental rights are not absolute and are tempered by the State's parens patriae responsibility to protect the welfare of children. In Re Guardianship of J.N.H., 172 N.J. 440, 471 (2002) (citing K.H.O., supra, 161 N.J. 337 at 347). The balance between parental rights and the State's protective interest over the welfare of children is achieved through application of the statutory "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if the following standards are met:
(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)(1)-(4).]
The four statutory criteria "are not discrete and separate." K.H.O., supra, 161 N.J. at 348. Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are "fact sensitive." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). For the trial judge, who sits as the fact-finder, this process involves assessing credibility. The trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses, consider any potential bias or prejudice of the witnesses, and then determine whether the Division, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).
On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
It is against this analytical framework that we analyze defendants' claims. We separately address each prong as to each defendant.
A. The First Two Prongs
The trial court found that the Division showed by clear and convincing evidence that the continuation of N.L.D.'s parental rights harmed and would continue to harm Jr. and S.M.S. N.L.D. has not challenged the court's finding on this prong, nor does she challenge the court's findings with respect to the second prong. Rather, she concedes past harm and notes that consideration of future harm under the second prong should be interwoven with her subsequent arguments on the judge's findings related to the third and fourth prongs, which she challenges.
R.A.S. argues that he never endangered his children through abuse or neglect. He contends the trial court impermissibly based its finding of harm on his incarceration without giving adequate reasons, thus resulting in a deprivation of due process. In concluding that R.A.S.'s parental relationship had and would continue to harm his children, the judge found:
Neither parent provided substantial parenting functions as to [Jr.] individually prior to the birth of his sister to the point where [R.A.S.] was in and out of prison, was in and out of employment, was in and out of residence, was in and out of stability, permanency, and functioned pretty much as a unit that had no ultimate purpose for the child's purposes.
The court highlighted the very small amount of contact R.A.S. had with either child, S.M.S. especially, during his "sporadic visitation" in between incarcerations. The court added that R.A.S.'s incarceration would prevent him from providing a safe and stable home for the foreseeable future and that "the delay to perform that . . . will continue to add harm to the children." Additionally, the judge concluded,
Neither parent has overcome the initial harm, according to the evidence. Neither parent has provided a safe, stable home. Neither parent has provided anything with regard to either of these children even as we speak today. For various reasons, [R.A.S.] has not been able[,] [due] to being incarcerated some of that time, incommunicado other parts of the time when he wasn't incarcerated. . . .
And I'm satisfied that [from] what I have heard and what I know about this case it indicates that neither parent within the foreseeable, reasonable period of time will be able to provide a safe and secure home for either of these children.
R.A.S. contends these findings failed to specifically state how he had contributed to S.M.S.'s harm, pointing out that it was N.L.D.'s substance abuse that caused harm to S.M.S. and any allegations of neglect towards Jr. remain unsubstantiated. While it is true the Division never substantiated any direct abuse towards S.M.S., R.A.S. does not dispute that at the time the Division initially became involved with the family, a year before S.M.S.'s birth, the family was homeless. The family continued to experience housing instability throughout 2005, ultimately resulting in the removal of Jr. from T.D.'s residence in August 2005 after T.D.'s home was inspected. August 2005 also represented the same time period during which R.A.S. was incarcerated and therefore unable to provide a stable home environment for S.M.S. at the time of her birth and immediately thereafter.
The Supreme Court, in In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999), addressed harm in the context of a father whose child was born addicted to heroin as a result of the mother's substance abuse during pregnancy. Although the infant's drug addiction could not be attributed to the father, the Court reasoned, Outside of occasional visits, L.R. has never provided R.H. with any paternal care, nurture, or support. R.H. was born with heroin in his system due to his mother's drug use during pregnancy; that harm was compounded by L.R.'s persistent failure to perform any parenting functions and to provide nurture, care, and support for R.H. for over three years. This constitutes a parental harm to that child arising out of the parental relationship and cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2). [Id. at 380-81 (citing K.H.O., supra, 161 N.J. at 352-54).]
The Court's reasoning in D.M.H. applies with equal vigor here. The record demonstrates, as the trial judge found, that R.A.S. had failed to provide "a safe and stable home" for either child. As such, R.A.S.'s claim that the trial judge could not identify how he harmed his children is without merit.
R.A.S.'s reliance upon N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 533 (App. Div. 2006) is misplaced. We reversed and remanded the termination of the parental rights of the mother in that case, based in part on the trial judge's "excessive reliance upon [the mother's] relatively short period of incarceration" and the judge's failure to assess the mother's "resolve to remain drug-free." Ibid.
The trial judge here did not summarily attribute to R.A.S. the harm to S.M.S. caused by N.L.D.'s substance abuse during pregnancy. Instead, it was R.A.S.'s prolonged inability to provide day-to-day nurturing to both children caused by his repeated incarcerations that contributed to the children's harm. The judge also cited factors independent of incarceration as reasons for finding continued harm, including R.A.S.'s own testimony in which he admitted that he would not be able to provide for his children until some unidentifiable time in the future.
The record shows adequate, substantial, and credible evidence to support the judge's finding that continuation of R.A.S.'s parental relationship has and would continue to present the children with emotional and developmental harm that R.A.S. remains unable to alleviate.
B. The Division's Reasonable Efforts
The judge found the third prong was met with evidence that the Division endeavored to provide services to R.A.S. and N.L.D. that were ultimately directed towards reunification of the family:
The Division has made diligent, reasonable efforts to provide services to each of the parents to correct their circumstances, most of which have fallen on deaf ears. And when there has been some portion of compliance it's been little and not sustaining.
So that at this point to require the Division to provide any further opportunity for services makes absolutely no sense for anybody. They have, in fact, considered alternatives to termination, some of which have been fully investigated, some of which have not for various reasons.
Throughout the judge's decision, the judge combined his analysis rather than running through the individual services the Division offered R.A.S. and N.L.D. Though judicial evaluations of reasonable efforts should be done on an individual basis, as with evaluations of parental fitness, K.H.O., supra, 161 N.J. at 348, there is substantial and credible evidence in the record to support the judge's finding of reasonable efforts by clear and convincing evidence as to both parents.
The record details how the Division provided numerous services to N.L.D. It arranged for two inpatient drug treatment programs, each of which also involved psychological and group therapy. The Division also referred N.L.D. to an outpatient program. N.L.D. was discharged from the two inpatient programs for non-compliance with program rules, and voluntarily discontinued the outpatient program. The Division provided N.L.D. with parenting classes through Sunrise House, transportation to and from child visits, and even hotel accommodations after her discharge from Straight and Narrow. N.L.D. does not dispute that she failed to comply with the recommended treatment plan or successfully complete any of the services offered through the Division's efforts.
The thrust of N.L.D.'s argument on appeal is that her depression, anxiety, and personality disorders required "gateway" psychiatric therapy, which she was never offered by the Division. N.L.D. concedes that the Division offered "substantial services to [her], including several drug rehabilitation programs." She contends, however, that initial psychotherapy would have enabled her to utilize effectively the resources the Division offered. She urges that we hold that the "reasonable efforts" criteria of N.J.S.A. 30:4C-15.1(a) require the Division to make initial psychotherapy available to parents with treatable mental illness before offering them any other services.
We reject such an approach. The statutory underpinning of reasonable efforts must be tailored to the needs of the particular parent rather than a specific formula mechanistically applied. K.H.O., supra, 161 N.J. at 348. Here, the Division's efforts encompassed both the opportunity for N.L.D. to avail herself of psychotherapy, in addition to drug treatment and parenting classes. However, N.L.D.'s inability to complete a drug program coincided with her inability and, at times, apparent unwillingness to take advantage of other services the Division attempted to provide to her. Ibid. We are therefore satisfied that substantial and credible evidence supports the court's determination that the Division provided clear and convincing evidence necessary to establish its reasonable efforts towards N.L.D.'s reunification with her children.
R.A.S. contends that "[t]o the extent [he] has received services, he has received them through drug programs, and through his own efforts, and not through the assistance of [the Division]." R.A.S. testified that through his own efforts, he completed a ninety-day drug program while incarcerated at MCACC in 2005 and attended Options Outpatient Program from August to November 2006 while out of contact with the Division.
First, the Division did provide assistance to R.A.S., and that assistance was not one-dimensional. For example, the Division referred R.A.S. to the Straight and Narrow Program where R.A.S. received anger management and parenting classes in addition to drug treatment. This treatment plan coincided with Dr. Brown's recommendations stemming from his November 2, 2005 psychological evaluation. While R.A.S. participated in an inpatient program for more than five months, he did not complete it. He was discharged from the program one week before completion of the assigned courses due to his "breaking more than one agency rule." Second, the Division arranged for visitation with both children while R.A.S. remained in contact and in compliance with his treatment plan.
R.A.S.'s failure, however, to remain in communication with the Division frustrated its ability to continue to assist R.A.S. in any reunification effort or to monitor his self-described outpatient treatment in which he claims he fully participated. Further, his failure to attend court hearings interfered with the court's ability to monitor his progress and led to the court's order releasing the Division from any obligation to continue its efforts towards reunification.*fn5 Moreover, his lack of communication with his parole officer led to his reincarceration.
R.A.S. correctly states that the third prong of the "best interests" standard requires the court to examine alternatives to termination of parental rights. In assisting N.L.D. in getting into Sunrise House, the Division's goal was to have custody of Jr. and S.M.S. transferred to Sunrise House in order to keep the family intact. This plan was not accomplished due to N.L.D.'s non-compliance with program rules. The prior criminal record of Forsythe's husband ruled out N.L.D.'s sister as an appropriate caretaker. There is no evidence in the record that any other family members expressed an interest in assuming a kinship guardianship over the children. Based upon this record, we are satisfied the court properly concluded that there was clear and convincing evidence that the Division engaged in reasonable efforts to reunite R.A.S. with his two children and appropriately explored alternatives to termination of his parental rights.
C. Balancing the Harm and Good of Terminating Parental Rights
The fourth prong of the statutory "best interests" test requires the trial court to find by clear and convincing evidence that "termination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The Court rejected the interpretation that this criterion requires a showing that no harm will result from severing ties with the biological parent. K.H.O., supra, 161 N.J. at 355. The inherent risk of harm from such severance must weigh against the paramount need for children to have permanent and defined parental relationships. Ibid. The trial judge must balance the two relationships and decide whether the children would "suffer greater harm from the termination of ties with [their] natural parent[s] than from the permanent disruption of [the children's] relationship with [the children's] foster parents." Ibid. This comparative determination requires expert testimony specifically directed to the strength of each relationship. Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 26 (1992)).
In this case, the trial judge found the bonding evaluations persuasive:
[Jr.] . . . has somewhat of a relationship with his mother. At least he understands who she is . . . what her function might be . . . But I am satisfied with what I've heard that what he requires from a parent or a parental . . . relationship is being more than adequately supplied by his current foster parents.
[S.M.S.] is a different situation. I don't know that [S.M.S.] knows anybody else as parent, mother or father, other than the person with whom she is living. She went right to her foster home from the hospital.
She spent no time with her mother or -- her natural mother or her natural father other than for visitation. But clearly from the evaluation done by Dr. Fiorello she is responsive to her foster parents as mommy and daddy.
The court concluded that the Division satisfied the fourth prong of the test because, as to both Jr. and S.M.S., "the bond with the foster parents is stronger than the bond with the natural parents" and "separation from the foster parents may cause each of the children further harm." The judge credited Dr. Fiorello's bonding evaluations between the children and their respective foster families. Dr. Fiorello testified that Jr. appears to view his foster fathers as his "psychological parents," referring to both as "daddy." He testified that Jr. trusts and perceives them as nurturing. Dr. Fiorello made similar findings in his bonding evaluation of S.M.S. and her foster parents, observing her "very strong preference" for them as well as their responsiveness to her needs. In both evaluations, Dr. Fiorello noted the presence of a "secure attachment" giving rise to a bond.
The judge acknowledged Dr. Brown's observation that Jr. showed a positive emotional relationship with his mother. Dr. Brown noted in his report that Jr. responded to N.L.D.'s requests and was affectionate and comfortable with her. However, a visitation supervisor noted the negative implications of Jr.'s clear emotional attachment to N.L.D. in his report of the August 8, 2007 visit. The supervisor noted that N.L.D. continually tried to feed Jr. junk food, slurred her words, showed sluggish motor movements, and "appear[ed] to be under some un/controlled substance." At the end of the visit, Jr. "could not stop saying goodbye [to N.L.D.] and waving his arms." He repeatedly told N.L.D. that he loved her and followed her out of the Division office.
In our view, neither N.L.D. nor R.A.S. present any meritorious challenge to the trial judge's factual findings on the fourth prong. Having observed the witnesses and reviewed the record, the judge appropriately credited the findings in Dr. Fiorello's bonding evaluations. Unquestionably, N.L.D. and Jr. exhibited a strong parent/child bond. At the time of trial, Jr. was five years old and had already been in five different foster homes. The only constant throughout these placements had been his parents, in particular, N.L.D. In that regard, his circumstances are similar to those noted by the court in E.P., supra, 196 N.J. at 109, where a thirteen-year-old subject to the guardianship proceedings had been in eleven different foster homes, with the only constant being her continued relationship with her mother. Ibid. Unlike E.P., however, Jr.'s current foster parents have expressed a desire to adopt him. Consequently, a "permanent placement for [Jr. is] in sight." Ibid. We are satisfied there is ample evidence in the record to support the judge's finding by clear and convincing evidence that defendants' bonds with their children do not outweigh the harm that will result from the lack of permanency and a defined parental relationship for Jr. and S.M.S. K.H.O., supra, 161 N.J. at 355.
N.L.D. contends her procedural due process rights were violated because the court arranged for neither her presence nor some form of alternate testimony or a postponement of the guardianship trial that resulted in the termination of her parental rights in absentia. We disagree.
Where government action may divest an individual of important rights, the protections needed to ensure procedural due process depend on a careful balancing of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of the interest through the procedures used, and the probable value of additional procedural safeguards; and (3) the governmental interests involved, including the added fiscal and administrative burdens that additional or substitute procedures would require. Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed. 2d 18, 33 (1976).
In N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 466 (App. Div. 2003), certif. denied, 177 N.J. 575 (2003), we analyzed the effect of the second Eldridge factor as it relates to the adequacy of a trial judge's efforts to ensure procedural due process in a termination of parental rights case. While recognizing that procedural requirements are more demanding in parental termination cases, we observed that the law does not mandate any particular procedure for all cases. Id. at 467 (citations omitted). We stated that the precise method of participation should generally be left to the discretion of the trial judge. Id. at 468-69 (citations omitted). We likewise noted that for a trial judge exercising such discretion, meaningful participation in the adjudicative process may or may not require an opportunity to appear in person at the trial. Id. at 468.
The record discloses that N.L.D. remained inaccessible to the court and to the Division for nearly four months leading up to the trial. She left New Jersey in August 2007. Until the time of trial, the only contact the Division had with N.L.D. was the message Dixon received on September 1, 2007 stating that N.L.D. had gone on vacation. Dixon testified that after receiving this message, she left four messages on N.L.D.'s cell phone and sent several letters, the last of which was returned to the Division. At some point after the trial commenced, the court received a letter from N.L.D. expressing her difficulty in returning to New Jersey for monetary reasons. As noted earlier, this letter was undated and attached to Forsythe's letter dated December 6. We do not believe, however, the court was aware of this letter and, in particular, the adjournment request, in advance of the start of the trial on December 10. The trial transcript reveals that the first question posed by the court to N.L.D.'s attorney after he entered his appearance was, "Do you know where she is?" The following colloquy ensued between N.L.D.'s attorney and the court:
[COUNSEL FOR N.L.D.]: Yes, Judge. She lives with relatives down in Florida. I talked to her this morning. That's where she is.
THE COURT: And she's decided she doesn't want to be here?
[COUNSEL FOR N.L.D.]: I'll try and answer that by saying that she was coming back up and she was making arrangements to fly up in January, she told me, although she was aware of the date today. So . . . I've been trying to encourage her to come now instead of waiting till January. I'm not sure what she's going to accomplish then. But she was aware of today's date, Judge.
THE COURT: Okay.
N.L.D.'s attorney had the opportunity to present evidence and to fully cross-examine witnesses in her absence. In view of N.L.D.'s voluntary decision not to provide the Division with the specifics of her vacation plans or to include information related to her anticipated return date, and her failure to respond to the Division's numerous attempts to contact her after September 1, she cannot now complain that the Division or the court failed to make arrangements for her to participate in the guardianship trial. Moreover, she was in communication with her attorney in advance of trial, was aware of the trial date, and apparently did not, in advance of trial, request that her attorney seek an adjournment or alternative appearance arrangements. Finally, the Division's proofs against N.L.D. were largely undisputed and compelling.
In sum, given the fact that N.L.D.'s counsel attended the trial and her presence would likely have made little difference in the outcome, and taking into account the children's need for permanency, we find no deprivation of N.L.D.'s procedural due process rights when the court did not delay its ruling for another month to permit N.L.D. an opportunity to appear or make alternative arrangements for her appearance.
The law guardian appeals two of the court's evidentiary rulings at trial. First, she argues that the trial judge erred in limiting her cross-examination of the witnesses presented. Second, the law guardian argues the judge improperly denied her the opportunity to produce an expert on behalf of the children in support of the contention that the best interests of the children required that Jr. and S.M.S. be placed together in Jr.'s foster home.
On the first day of trial, the law guardian took issue with the opinions of Drs. Fiorello and Brown as to whether sibling relationships are in fact secondary to child-caregiver relationships. She made numerous attempts to cross-examine Dr. Fiorello with outside psychiatric literature proffered as contradictory to Dr. Fiorello's position. The judge sustained the Division's objections to such questioning on the grounds that it exceeded the scope of direct and would be better saved for her argument on the motion itself.
On the second day of trial, the law guardian attempted to address the issue of the primacy of sibling relationships over caregiver relationships through her cross-examination of Igiehon. At one point the judge stepped in, saying "[y]ou're beating a dead horse with this witness." After a heated exchange, the judge silenced the law guardian with the threat of a fine and even hinted at contempt. The judge did not, as the guardian contends, attempt to prevent her from preserving the issue for appeal.
The ability to make evidentiary rulings on objections as they arise during testimony, as well as to maintain order and proper courtroom decorum, are well-established functions of the judicial role. N.J.R.E. 611. The court permitted the law guardian to cross-examine the witnesses within established evidentiary bounds. Her contention that she was denied a fair opportunity is not supported by the record.
Turning to the exclusion of expert testimony, the law guardian argues that the perceived animosity between the two foster families will nullify the effect of the judge's sibling visitation order. The law guardian urges that the proffered expert testimony would tend to prove a "fact of consequence," namely, the relative harm the children might suffer from never seeing each other again, as weighed against the harm S.M.S. would suffer from being removed from her foster home.
A trial judge's discretion to exclude evidence is broad and should stand "unless so far wide of the mark that it results in a manifest denial of justice." Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 284 (App. Div. 1996). Here, the only evidence of animosity between the two families is an e-mail from S.M.S.'s foster mother to the foster parents of Jr. stating, "I don't trust you or your intentions until [our adoption of S.M.S.] is final." The remaining evidence indicates nothing but continued cooperation between the two families in facilitating sibling visitation.
The record contains no evidence that the foster parents ever resisted sibling visitation in the past. Thus, as a threshold matter, the law guardian's argument that the children will become lost to each other without reunification appears speculative. Conversely, the potential harm in removing S.M.S. from the only family she has ever known is very real. Moreover, the judge did not discount the importance of the siblings being placed together, as evidenced by the sibling mandatory visitation component of the judge's guardianship order. Rather, the trial judge balanced these harms in ruling on the children's best interests:
They are both involved in good foundational family units. And now at this point to turn around and say, okay, let's move one of them -- and I don't care which way you want to go, there's thought to be given to both of them. [S.M.S.]'s in a place where she has never not been. There's a certain expectation that has arisen from that. This is where she's comfortable. This is what she knows as home. [Jr.] to maybe some lesser degree because he's been other places. But certainly he's in a place now where he's comfortable. This is home for him.
We find no abuse of discretion in the court's decision declining to hear expert testimony on this issue.
The law guardian contends further that the statutory preference of N.J.S.A. 9:6B-4 should "favor" sibling placement in the same home when available, in order to be read in harmony with the statutory "best interest" test. N.J.S.A. 30:4C-15-1. The law guardian also contends N.J.S.A. 9:6B-4(d) already favors such placement by requiring the Division to use its "best efforts" to place siblings together, as opposed to apart.
The essence of this sibling reunification argument is that this court should affirmatively require the Division to place siblings together in any case where a safe, stable home can accommodate them. Thus, the law guardian advocates a presumption in favor of sibling reunification even where, as in this case, greater emotional harm would likely result from the separation of a child from the foster family where she has resided since birth.
While N.J.S.A. 9:6B-4(d) favors placement of siblings together, the Division is only obliged to make its "best efforts" to do so. On February 3, 2006, the Division placed Jr. in the foster home where S.M.S. had been placed several months earlier, but after one week S.M.S.'s foster mother requested that Jr. be removed because he required individualized care. Nothing in N.J.S.A. 9:6B-4 expresses a legislative intent that consideration of joint sibling placement supplants other statutory considerations the court must consider in determining the best interest of the child. N.J.S.A. 30:4C-15.1(a). We believe such a preference or presumption should be the function of legislative action rather than the result of a judicially created presumption.
The Child Placement Bill of Rights Act, N.J.S.A. 9:6B-4, is already harmonized with New Jersey's termination of parental rights statute, N.J.S.A. 30:4C-15.1(a), as both statutes require Family Part judges to consider the various statutory criteria and utilize their specialized expertise in making a determination as to the child's overall welfare and best interests. Under these circumstances, we decline to interpret the sibling reunification factor of N.J.S.A. 9:6B-4(d) to carry any more weight than the statute allocates by its terms.