March 20, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.V.K., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FG-15-26-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 11, 2009
Before Judges Axelrad, Lihotz and Messano.
M.L.K. appeals from the May 9, 2008 Family Part judgment terminating his parental rights to his two-year-old daughter, A.V.K., and awarding guardianship of the child to the Division of Youth and Family Services (DYFS) following a contested hearing. L.D.I., the mother of A.V.K., has not appealed the termination of her parental rights to her daughter.*fn1
On appeal, M.L.K. contends that DYFS failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of A.V.K. required severance of his parental ties. The Law Guardian supports termination of the father's parental rights. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., New Jersey Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004).
DYFS became involved with the family in April 2005, when it received a referral that L.D.I. would routinely leave seven-month-old M.K., Jr. with a friend for days without food or diapers. The baby was also not up-to-date with his shots. At the time, L.D.I. and the baby were living at the maternal grandmother's house. The maternal grandmother advised DYFS that she had observed M.L.K. and L.D.I. arguing, and that L.D.I. informed her M.L.K. had hit her. During the course of the investigation, DYFS also learned that both parents had a history of heroin use and both had been in substance abuse treatment. The findings of DYFS also included concerns about M.L.K.'s criminal history and the allegations of his domestic violence against L.D.I. Pursuant to the parental consents, M.K., Jr. was placed with his paternal grandparents, Mr. and Mr. W., until January 5, 2006, when the court entered an order transferring legal and physical custody of him back to his mother.
In October 2006, DYFS placed M.K., Jr. in the temporary care of his maternal grandmother pursuant to an emergency removal after learning that L.D.I. had been arrested for possession of controlled substances. On November 1, 2006, the court found both parents abused and neglected M.K., Jr. - L.D.I. by her drug abuse and arrest, and M.L.K. by his drug involvement and failure to provide support for the child and failure to participate in services. In November, DYFS learned that L.D.I. was permitted unsupervised contact with her son in violation of the court order. DYFS then placed M.K., Jr. back into the home of his paternal grandparents, with whom he has resided since that time. While investigating this referral, DYFS became aware that L.D.I. was pregnant with A.V.K.
A.V.K. was born on February 11, 2007, with both her and L.D.I. testing positive for methadone. The baby was classified as "medically fragile" due to drug exposure and withdrawal symptoms, as well as exposure to Hepatitis C. A.V.K. was also determined to be developmentally delayed. DYFS was awarded legal custody of A.V.K. on February 15, 2007. M.L.K. was present at the hospital and advised the caseworker that he had been a heroin addict but had been drug-free for five years and was currently on probation, which would end in June 2007. He reported he did not think he could handle a newborn, particularly since he worked full-time and lived with his paternal grandmother. He believed the best plan for A.V.K. would be to either remain with her mother in an in-patient drug program, so they could bond, or to live with his parents. During a visit shortly after the baby's birth, however, the paternal grandparents ruled themselves out as caregivers for A.V.K., stating they already had M.K., Jr. and another foster child in their home and did not have room for another child. A.V.K. was discharged from the hospital on March 27, 2007, and was placed in specialized foster care with Mr. and Mrs. U., with whom she presently resides.
DYFS continued to investigate a number of relatives and friends as alternative caregivers for A.V.K. On April 13, 2007, during a DYFS visit regarding M.K., Jr., Mr. W. advised the caseworker he and his wife would find a way to take A.V.K. before she was adopted by strangers; moreover, there were extensive family members who would be willing to care for the child. The case manager asked the paternal grandfather to have those relatives contact DYFS. In July 2007, the paternal grandparents ruled themselves out as caregivers because they could not provide the necessary care for the child in light of her medical issues. On September 11, 2007, R.K., a paternal aunt, informed the caseworker she could not be a permanent caregiver, as did Mr. and Mrs. S., M.L.K.'s cousins. Following a meeting with DYFS on November 8, 2007, Mr. and Mrs. D., family friends of the child's mother, sent a letter withdrawing their request to be considered as a placement for A.V.K. due to her special needs and future medical requirements, expressing the belief it would be in her best interest to remain in her current placement. In December 2007, DYFS ruled out the paternal aunt L.M. and paternal grandfather H.K., due to disqualifiers related to domestic violence incidents. DYFS sent out letters to each of these individuals.
On November 9, 2007, DYFS filed a guardianship complaint seeking to terminate the parental rights of L.D.I. and M.L.K. to both M.K., Jr. and A.V.K. The trial took place over five days in February 2008, April 2008, and May 2008. On the first day of trial, paternal cousins Mr. and Mrs. S. moved to intervene in the guardianship action, having re-expressed an interest to DYFS in January about caring for A.V.K. The court denied the motion because the movants did not exhaust the administrative remedies referenced in the rule-out letter they received in September, and dismissed their complaint for custody. During the trial, the court heard testimony from Amy Schmiegl, Janette deMonch, and Stephanie Ronau, DYFS caseworkers; Dr. Robert Puglia, a clinical psychologist retained by DYFS who evaluated M.L.K.; Dr. Maureen Santina, a psychologist retained by the Law Guardian who conducted a bonding evaluation between A.V.K. and her foster mother; and both parents.*fn2 Having observed the demeanor and considered the testimony of the lay and expert witnesses, examined the exhibits entered into evidence, and heard arguments by counsel, Judge Strelecki concluded that A.V.K.'s best interests required severance of M.L.K.'s parental ties. The judge made findings of fact and credibility assessments, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-610 (1986), and as codified in N.J.S.A. 30:4C-15.1.
We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In Re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); see also, In Re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001). We also have a limited scope of review of the Family Part's factual findings. In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness's credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 19 (1992).
We are not to disturb the factual findings and legal conclusions of the trial judge unless 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) (citation omitted). Additionally, because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the child require termination of M.L.K.'s parental rights.
The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing 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." W.P. and M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-559 (1972)). However, 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) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. and M.P., supra, 308 N.J. Super. at 382.
When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role within time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that the risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties" W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra, 129 N.J. at 10).
The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15 and 15.1a require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, supra, 336 N.J. Super. at 274. Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1a requires the Division to prove:
(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 [formerly referred to as "foster"] 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.
These standards are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our examination of the record discloses that all four prongs of the test as they pertain to A.V.K. have been met by clear and convincing evidence. The first prong involves inquiry into whether there has been "endanger[ing] of the child's health and development resulting from the parental relationship," and whether there will be future harm to the child's safety, health or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is not necessarily on a "single or isolated harm or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The court found that the lifestyle of both parents --their substance abuse, criminal histories and incarcerations, domestic violence incidents, lack of stable housing, inability to properly care for M.K., Jr., and failure to comply with services, evidenced conduct that was detrimental to A.V.K. The court surmised that no physical harm had come to the fifteen-month-old child because neither parent ever had A.V.K. living with them.
M.L.K. argues that the weight of the testimony indicated he was a fit parent, and any negative inferences towards him were the result of the court "lumping" him with L.D.I. and imputing to him her arguably harmful or neglectful behavior. He relies on the testimony of Dr. Puglia who evaluated him in August 2007, and found the twenty-four-year-old to be of above average intelligence with no personality disorders or cognitive impairments that would prevent him from caring for the child. He also contends he was forthcoming with the expert regarding his teenage substance abuse and criminal history, which improper behavior had not occurred in the past five years.
Dr. Puglia's report does not support M.L.K.'s position. Based on the overall evaluation, Dr. Puglia testified he "didn't feel at that time that [M.L.K.] was prepared to assume custody[.]" He was concerned M.L.K. "appeared to be minimizing . . . problems . . . during the evaluation" and "appeared resistant to admitting to any kinds of problems that he was [potentially] having." The psychologist recommended M.L.K. continue to have supervised visits until further investigation by DYFS regarding evidence of domestic violence or mental health treatment and his compliance with a substance abuse evaluation and completion of a variety of recommended substance abuse, anger management, parenting, and other programs.
It is evident from the record that M.L.K. did minimize his past problems and current situation that adversely impacted and continues to impact his ability to provide a safe and stable home for A.V.K. Contrary to M.L.K.'s general denial of domestic violence towards L.D.I., in addition to the 2005 report from her mother of L.D.I.'s admission of an argument with M.L.K. resulting in bruises on her arms and wrists, DYFS also received reports in August 2007 that M.L.K. struck L.D.I. in the face in the presence of their son, and in January 2007 that L.D.I. had been viciously assaulted by him when he questioned the paternity of her unborn child.*fn3
Moreover, as noted by the court, M.L.K. rebuffed DYFS' efforts to engage him in treatment that would assist in providing a drug-free, stable environment for M.K., Jr. He failed to appear for a psychological evaluation with Dr. Lee on August 2, 2005 and to participate in a substance abuse evaluation or treatment, ultimately leading to the November 2006 finding of abuse and neglect of his son for failure to comply with services. Through 2007, M.L.K. continued not to comply with recommended services as noted by the February 7, 2007 letter from Preferred Behavioral Health Services (PBHS). Moreover, on March 29, 2007, Dr. Lee was forced to cut short his psychological evaluation of M.L.K. due to his refusal to answer questions, abrasive behavior, and overall refusal to cooperate, noting M.L.K. became "remarkably hostile, agitated, and belligerent." On May 31, 2007, PBHS, through its Substance Abuse Initiative program, terminated its involvement with M.L.K. for reason of non-compliance, noting the counselor made several attempts to contact him, but M.L.K. only came in once since January 30, 2007. Although M.L.K. complied with a substance abuse evaluation on July 12, 2007, on July 23, 2007, he refused to report to PBHS for a random urine drug screening. Although he had initially identified himself on the phone, when the counselor made the request, M.L.K. denied he was the client and hung up the phone. Thus M.L.K. had refused to submit to any urine screens other than the one in January 2007 that was negative for substances, leading to a concern about whether he had remained drug-free. Furthermore, on August 9, 2007, M.L.K. was unfavorably discharged from the extended assessment program offered by PBHS due to his failure to show up for an appointment with the substance abuse counselor and continued refusal to comply with recommended services. To make matters worse, on November l, 2007, M.L.K. was arrested on two counts of third-degree possession of controlled dangerous substances and one count of third-degree manufacturing, distributing or dispensing controlled dangerous substances.*fn4 He spent seventy-eight days in the county jail through January l8, 2008.
The second prong contemplates a determination of parental unfitness. DYFS must prove that the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that has endangered the child's health and development or if the parent has failed to provide a "safe and stable home for the child" and a "delay in permanent placement" will further harm the child. K.H.O. supra, 161 N.J. at 347. M.L.K. again contends he did nothing to harm his daughter or in any manner bring about DYFS' involvement with the family. He further contends he undertook steps to address DYFS' concerns regarding his ability to parent by completing a psychological evaluation, parenting skills classes and an anger management group, as well as attending visitation. Moreover, recognizing that an alternate plan might be necessary for the care of his daughter, M.L.K. claims he went to great lengths to offer his cousins the S. family, and advocated for A.V.K.'s placement in their care.
We disagree. Although M.L.K. finally completed the twelve-week anger management group sessions and ten-week parenting group sessions as of October, 2007, he failed to complete or even begin to take advantage of the majority of the services offered by DYFS, particularly those relating to substance abuse treatment and counseling, which are critical if M.L.K. is to remain drug-free. Critically, M.L.K. did not show an interest in learning how to care for a medically fragile infant with significant needs or make a significant attempt to bond with his infant daughter, having apparently stopped visiting her after September 2007. Moreover, M.L.K. did not have stable housing and was merely speculating that he might be able to live with A.V.K. at his parent's house after he completed the drug rehabilitation program through the Salvation Army.
The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). It is undisputed that DYFS provided M.L.K. with a plethora of services both before and after A.V.K.'s birth. Although he availed himself of some of the services, his participation was sporadic and reluctant, rather than a good faith effort to engage in meaningful treatment with an eye toward independently assuming the parenting responsibilities and support of a medically fragile infant.
We are also satisfied that DYFS sufficiently explored other placement alternatives with relatives and friends to no avail. During a visit shortly after A.V.K.'s birth, the paternal grandparents ruled themselves out as caregivers for A.V.K. when she was placed in specialized foster care with the U. family, where she has remained. Through December 2007, DYFS caseworkers again met with the paternal grandparents, and explored placement, to no avail, with two paternal aunts, another paternal grandfather, a family friend of L.D.I., and M.L.K.'s cousins, the S. family.
Lastly, the statute's fourth prong mandates a determination as to "whether a child's interests will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must inquire into the child's bond with both biological and foster parents. "[A]fter considering and balancing the two relationships," the question becomes will "the child  suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents [?]" K.H.O., supra, 161 N.J. at 355. Answering the question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (citations omitted). This prong does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.
M.L.K. contends that in view of A.V.K.'s young age and delayed cognitive development, she could have been removed from the foster home where she has resided since birth and placed with his cousins, the S. family, under a kinship legal guardianship as an alternative to termination of his parental rights. See N.J.S.A. 3B:12A-6(d). He emphasizes that DYFS allowed Mr. and Mrs. S. to visit A.V.K. and to reconsider them as a placement option when they resurfaced and expressed an interest in caring for A.V.K. in January 2008.
We discern no abuse of discretion by the trial court in declining to allow participation by the S. family in the process at the time of the guardianship trial and in concluding it was in A.V.K.'s best interest for there to be permanency and stability through the termination of her parental rights so she could be adopted by the foster parents who have clearly become her psychological parents. The overwhelming and undisputed evidence established that A.V.K. needed permanency, that M.L.K. was not in a position by trial or within a reasonable time thereafter to provide a secure and stable home for the medically fragile infant, and that M.L.K. and his daughter had not bonded while she and her foster parents had developed a strong bond. Based on the bonding evaluation, Dr. Santina concluded A.V.K. showed a "significant positive bond to her foster mother" and her foster mother was the equivalent of A.V.K.'s "psychological parent" in that A.V.K. showed "clear signs of identifying [her] . . . as her parent."
Contrary to M.L.K.'s assertion, the expert testimony is clear that the then fourteen-month-old child would suffer significant harm if removed from the only home she had ever known. As Dr. Santina opined:
So that the likelihood is that it will cause her some prolonged disruptions in her social and emotional development and there is also a substantial probability that it could cause enduring damage to her emotionally and socially. So that taking her away from the foster mother in my opinion at this point and putting her with somebody else involves the significant possibility that there could be long term damage. And, certainly the . . . the likelihood that there will be at the minimum severe emotional distress and temporary regression.
[B]ecause this girl has been with this care giver for the length of time that she's been there which is her entire life pretty much that clearly this is the only care giver that she has know and that she's clearly bonded with her.
[I]t would be a very, very, significant and quite possibly highly damaging step to try to remove her from that care giver and that needs to be taken into consideration.
We further note that A.V.K.'s foster parents are "Specialized Home Services Providers" who are trained to care for medically fragile children. Thus, not only is A.V.K. flourishing in her current environment, but her foster parents, who are specially trained to care for her needs and medical condition, wish to adopt her. Thus, permanency and stability, ideally with the U. family, is clearly in the child's best interest.
We are convinced, as was the Family Part judge, that although M.L.K. loves his daughter, he is unable to provide a stable and permanent home that she so desperately needs. As we concluded in In Re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.) certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. Children cannot afford to wait until such time as their parent might be able to provide a stable and secure environment for them, particularly a child with special needs such as A.V.K. Freeing the child for adoption will not do more harm than good, and will provide hope and permanency to a young child who desperately deserves a stable family commitment.