October 30, 2009
STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
W.B. AND D.E., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.T.F.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-34-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
September 23, 2009
Before Judges Cuff, Payne, and C.L. Miniman.
Defendants W.B. (the father) and D.E. (the mother) appeal from a Judgment of Guardianship terminating their parental rights to J.T.F.B. (J.B.), seeking reinstatement of those rights to avoid the planned adoption of J.B. by his current foster parents. We affirm.
On December 7, 2005, the Office of Children's Services received allegations from an anonymous reporter that the mother was pregnant, smoking crack, and not receiving prenatal care and that there was domestic violence in the home.*fn1 On January 1, 2006, the mother gave birth to J.B. at a hospital in Gloucester County, and on January 3, 2006, J.B. and the mother tested positive for cocaine on urine drug screens.
On January 5, 2006, plaintiff Division of Youth & Family Services (the Division) obtained an order for the removal of J.B. from the care and custody of the father and mother because both mother and baby tested positive for cocaine following the baby's birth on January 1, 2006; the mother had inadequate prenatal care; and both parents had significant mental health histories, which would likely interfere with their ability to safely care for their infant child. Removal was also deemed necessary due to safety risks associated with the mother testing positive for Hepatitis C. Both parents were granted weekly supervised visitation and ordered to submit to mental health evaluations, as well as substance abuse evaluations and random drug screening. J.B. was placed in a Division-approved foster home where he remains to date. J.B. has never resided with his biological parents.
Following J.B.'s removal, both parents were referred for psychological and substance-abuse evaluations. On January 9, 2006, the Center for Family Services (CFS) evaluated the mother for substance abuse. She tested positive for barbiturates and was referred to Kennedy Behaviorial Health for Level II Intensive Outpatient Treatment (IOP). On the same day, CFS also evaluated the father, at which time he tested positive for cocaine and was referred to New Point Behavioral Health for Mentally Ill and Chemically Addicted (MICA) treatment on a Level I IOP basis.
On January 20, 2006, a parental fitness evaluation was conducted of the mother by Dr. Norman D. Schaffer, Ph.D., who diagnosed the mother with Posttraumatic Stress Disorder (PTSD) and Bipolar Disorder. Dr. Schaffer recommended intensive MICA treatment and supervised visitation with J.B. Similarly, on February 17, 2006, Dr. Schaffer conducted a parental fitness evaluation of the father, at which time Dr. Schaffer reported concerns about the father's denial of drug use and lack of willingness to follow recommendations for treatment. The father did not attend scheduled supervised visitations with J.B. on January 25, January 31, February 2, and February 27, 2006. The mother missed her scheduled visitation with J.B. on February 8, 2006.
On January 24, 2006, the return date of the Order to Show Cause, an order was entered continuing the Division's custody of J.B. The order provided weekly supervised visitation for both parents; required the Division to provide bus passes for visitation; ordered the father to enroll in an outpatient MICA program; and ordered the mother to enroll and complete recommended Level II treatment and MICA programs. The Division was further ordered to "evaluate paternal aunt, [C.B.], for possible placement."
On February 24, 2006, Dr. Edward Baruch, M.D., conducted the court-ordered psychiatric evaluation of the father, which resulted in a diagnosis of Obsessive Compulsive Disorder (OCD) and Adjustment Disorder with Depressive Mood. Dr. Baruch recommended medication for these conditions along with close monitoring and individual counseling. The father began treatment at Underwood Memorial Hospital on March 23, 2006. However, the father informed treatment providers that he did not intend to comply with services at this facility and was subsequently discharged at his request on April 18, 2006.
On March 14, 2006, the date of a scheduled case-management conference, the mother tested positive for cocaine. Both parents were again ordered to comply with recommended addiction and mental-health treatment and to participate in a parenting class. At this time, a new address was provided for paternal aunt C.B. and the Division was ordered again to assess her for possible placement. The mother began her treatment program at Kennedy Behavioral Health Services on April 10, 2006, but was discharged in May of 2006 for noncompliance with services and program rules.
On May 2, 2006, the parents stipulated that J.B. "was exposed in utero to illicit drugs. [The mother] and child tested positive at time of birth, and agree that these acts or omissions constitute abuse or neglect." An order was then entered requiring continued compliance by the parents with recommended services. On June 13, 2006, reports were received by the Division from FamCare, Inc., indicating both parents had completed their Parent Education Program.
In or about July 2006, the parents moved to Georgia, allegedly because of a lack of resources in New Jersey and frustration with the court system in regards to J.B. The parents notified the Division of their relocation on August 21, 2006. Caseworker notes indicate that the mother had requested flex funds for assistance with housing needs before this move. It does not appear that any such funding was provided.
On September 11, 2006, the court ordered the parents to identify and complete mental-health and substance-abuse treatment in Georgia and to obtain appropriate housing. The Division was ordered to contact the J. family as a possible placement for J.B. and to complete the request for an interstate evaluation.
On October 11, 2006, the Division sent a request for a home study of the parents to Georgia under the Interstate Compact on the Placement of Children (ICPC). On November 29, 2006, the mother notified the Division that the J. family had a special needs child in their home and would not be able to care for J.B.; the Division confirmed this information with the J. family.
On December 4, 2006, a concurrent permanency plan for termination of parental rights and adoption along with continued efforts towards reunification was entered because "the parents are not working towards reunification and have not visited the child in over 4 months." The judge noted J.B. had been in foster care since January 2006 and the foster parents wanted to adopt him. However, she also noted the parents might begin treatment services in Georgia in the near future, thus coming into compliance. On December 21, 2006, the foster parents informed the Division that they definitely wanted to adopt J.B. On January 4, 2007, a Georgia caseworker reported to the Division that both parents were receiving treatment for psychiatric issues, were cooperating with services, and were to be sent for substance-abuse assessments.
On March 5, 2007, both parents appeared by telephone conference call for the status hearing on the previously ordered concurrent plan, which was termination of parental rights along with continued efforts towards reunification. The judge gave the parents her chambers telephone number and on the record updated the address and phone number for the parents. During this hearing, the father inquired into the possibility of gaining custody of J.B. in light of their recent compliance with services in Georgia.
The Guardianship Complaint was filed on March 5, 2007, because of the parents' lack of compliance with services; lack of consistent contact with J.B., "although physically and financially able to do so"; continuing unresolved mental-health and drug-use issues of both parents; failure by both biological parents to make a permanent plan for the child; and the Division's belief that neither the father nor the mother was capable of caring for J.B.
On June 22, 2007, the judge set trial dates for October 29 and 30, 2007. Both parents were reportedly in treatment in Georgia, but were represented by counsel and thus not in default for failing to appear. The caseworker for the Division indicated it would pay for transportation and lodging for the parents for their upcoming psychiatric evaluations in New Jersey.
In a letter dated June 15, 2007, from the Clayton County Department of Family and Children Services, a case manager wrote that the parents were evaluated for substance abuse in January 2007. Both were recommended for treatment, entered and completed treatment, and were currently enrolled in aftercare. The mother was also seeing a psychiatrist and taking medication for her bipolar disorder, mood stabilization, sleep, and pain. The father was receiving treatment for bipolar disorder and schizoaffective disorder and was taking medication for his mental illness and difficulty sleeping. The case manager in Clayton County did not recommend placing J.B. with his parents.
On August 1, 2007, Dr. James L. Loving, Ph.D., conducted a psychological evaluation of the father. In his report, Dr. Loving noted that the father had twelve other children in addition to J.B., acknowledged little involvement with them, and admitted he owed support for them. Dr. Loving further found "significant psychiatric symptoms in [the father's] case." He did not find the father to be a candidate for successful, healthy reunification with J.B.
Dr. Loving conducted a psychiatric evaluation of the mother on that same day. Dr. Loving noted that all four of the mother's other children were removed from her care. The mother acknowledged a history of psychiatric treatment, but denied using cocaine on more than one occasion, even though she was in substance-abuse treatment at that time in Georgia. Dr. Loving did not find the mother to be a candidate for successful, healthy reunification with J.B. because of her mental and emotional problems and lack of parenting skills.
On August 2 and 8, 2007, Dr. Loving conducted bonding evaluations of the parents with J.B. and of the foster parents with J.B. Dr. Loving noted that J.B. was a high-risk and special-needs child. He further noted J.B. did not seem to recognize, much less be attached to, either of his birth parents. However, Dr. Loving reported J.B. did show a fairly strong, positive, and secure emotional attachment to both foster parents. Dr. Loving opined that no harm would be caused to J.B. if the birth parents' relationship was severed. Conversely, Dr. Loving did report that there was a risk of serious emotional harm if the relationship between J.B. and his foster parents were to be severed.
By order of October 12, 2007, trial for the termination of parental rights was scheduled for October 30 and 31, 2007, following the bonding evaluations of the parents with J.B. Both parents were ordered to attend the trial as scheduled.
On October 19, 2007, Dr. Louis S. Albin, psychologist for the mother, conducted a bonding and psychological evaluation of her. Dr. Albin found the mother to suffer from major depression, borderline personality disorder, and dependant personality disorder. Dr. Albin advised against granting custody of J.B. to the parents because he was "not sure that [the parents] can provide what [J.B.] needs." However, Dr. Albin stated that termination of parental rights would not be in the best interest of the child and suggested that the Division look into placing J.B. with the father's brother. Dr. Albin did not evaluate J.B. with his foster parents. Dr. Albin recommended that the Division continue custody, care, and supervision of J.B.
On October 26, 2007 and December 6, 2007, the father made a written request through counsel that the Division assess his brother as a possible placement alternative for J.B. When trial began on October 30, 2007, both parents were present. On the second day of trial, October 31, 2007, the father was present; however, the mother was not because she was in the hospital with gall bladder issues. On October 31, 2007, the judge ordered a permanency plan for adoption of J.B. within a nine-month time-frame, stating that "neither parent has remedied the problems which led to the child's removal." In that permanency order, the judge stated, "Termination of Parental rights followed by Adoption is an appropriate plan because: The child has never lived with his parents, who continue to lack the necessary stability and abilities to provide a safe and stable permanent placement." Because the trial required more than two days, the judge explained to the father, if he could not return to court on future trial dates, he would be permitted to appear by telephone conference call, as requested by the father.
On November 1, 2007, trial continued, at which time the parents, through counsel, requested that their appearance be excused because their landline telephone was not operating correctly and the father's cell phone was unavailable. The court granted this request.
Thereafter, trial continued on various dates through February 2008. After trial, an oral decision was rendered on March 31, 2008, with a written decision following on June 19, 2008, and the parents' rights to J.B. were terminated. This appeal followed.
Appellants argue that the judge erred in her decision to terminate their parental rights because the State failed to meet its burden of proof through clear and convincing evidence that termination would be in the best interest of J.B.
The scope of our "review of a trial court's fact-finding function is limited.... Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 411-412 (1998) (internal citations omitted). Thus, we "should not 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.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
N.J.S.A. 30:4C-15.1(a) requires that the State show by clear and convincing evidence that termination is in "the best interest of the child" as measured by a four-prong test:
(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).]
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
The first prong was satisfied because the parents endangered the safety and health of J.B. Under the first prong, "parental fitness" is the key. Id. at 348 (citation omitted). As the judge stated, "The statute requires that the State demonstrate harm to the child by the parent. Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." Ibid. (citing N.J.S.A. 30:4C-15.1(a)(1)). While drug use alone is insufficient to satisfy the first prong of the inquiry, id. at 349, here the mother stipulated that J.B. "was exposed in utero to illicit drugs [and mother] and child tested positive at time of birth." She agreed this constituted abuse or neglect and indeed it does. Ibid. In addition to the mother's drug use, the record clearly documents a lack of prenatal care along with her severe mental-health diagnoses and substance-abuse issues, which contributed to the continued endangerment of J.B. Therefore, the trial court's finding on prong one was supported by clear and convincing evidence in regard to the mother.
While the father did not similarly stipulate, his argument that his relationship with his son was not shown to endanger J.B.'s health and safety fails. In a similar case,
[o]utside of occasional visits, [the father] has never provided [the child] with any prenatal care, nurture, or support. [The child] was born with heroin in his system due to his mother's drug use during her pregnancy; that harm was compounded by [the father's] persistent failure to perform any parenting functions and to provide nurture, care, and support for [the child] 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). K.H.O., supra, 161 N.J. at 352-54. [In re Guardianship of D.M.H., 161 N.J. 365, 380-381 (1999).]
The father did not protect J.B. in any way from the admitted abuse or neglect J.B. suffered due to his mother's lifestyle while he was in utero. Furthermore, the father's continued and prolonged absence from J.B.'s life, his history of drug use, and noncompliance with court ordered mental-health and substance-abuse treatment constituted dangers to J.B.'s health and safety. In addition to the mother and J.B. testing positive for cocaine at J.B.'s birth, the father also tested positive for cocaine nine days later. The father shared the responsibility of protecting J.B., providing care, and nurturing, all of which he failed to do. These findings are supported by clear and convincing evidence in the record through the bonding evaluation, the psychological evaluation by Dr. Loving, and the pattern of noncompliant behavior exhibited by the father since J.B.'s birth in January 2006. Therefore, the first prong was satisfied in regard to the father because the parents endangered J.B.'s safety and health.
Under the second prong, the court must "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The judge here correctly found that the parents are unable to eliminate the harm to J.B., as evidenced by the record of noncompliance with court-ordered services aimed at reunification, lack of visitation, missed court appearances, failure to complete mental-health and substance-abuse treatment programs, repeated positive drug screens for both parents, and their departure from New Jersey without any contact or visits with J.B. since they moved in July 2006 with the exception of the August 2007 court-ordered bonding evaluation.
Furthermore, the record clearly and convincingly supports the judge's finding that neither the father nor the mother is able or willing to provide a safe and stable home for J.B. The past behavior of the parents is probative in this part of the analysis. There were twenty-five prior referrals to the Division on this family. It is also uncontested that the mother has four other children that have been removed from her care permanently through adoption and the father has twelve other children that he admits have been "taken" from him and with whom he has had no visitation and provides no child support.
After J.B. was removed from their care, both parents were dismissed from their respective service providers for noncompliance in New Jersey. At the time of trial, both parents were receiving services in Georgia. However, the interstate evaluator, the Division, Dr. Loving, and Dr. Albin were not able to recommend reunification. The record clearly and convincingly supports the judge's finding on this part of the second prong.
The final inquiry on the second prong is whether a delay in permanency would add to the harm to the child. N.J.S.A. 30:4C-15.1(a)(2). The bonding evaluation here clearly and convincingly demonstrates that there was no bond between the parents and J.B. In fact, the bonding evaluation indicates that the father left the room and was detached for a majority of the evaluation, which was the first visit the parents had with J.B. in over thirteen months. The judge found that the poor "attitude [of the parents] and failure to perform basi[c] parenting functions constitutes a parental harm cognizable under N.J.S.A. 30:4C-15.1(a)(1)." This finding is clearly supported by the record.
Furthermore, J.B. had developed a strong bond with his foster parents. N.J.S.A. 30:4C-15.1(a)(2) states that "harm may include evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child." In this case, J.B. has resided with his current foster parents since birth, has never resided anywhere else and, as noted by Dr. Loving, would face significant and enduring harm if he were removed from his foster home. Thus, the judge properly found that the second prong was satisfied by clear and convincing evidence that the parents are not able or willing to eliminate the harm to J.B. and delaying permanent placement with his lifelong caregivers would add to that harm.
The issue under the third prong is whether the Division made reasonable efforts to provide services to the parents in an effort toward reunification and whether no other alternative to termination of parental rights exists. N.J.S.A. 30:4C-15.1(a)(3). In this case, the Division made several attempts to refer the parents to mental-health and addiction services. The Division arranged for in-home parenting skills classes for appellants and provided bus passes for visitation with J.B. to facilitate reunification. The parents did complete the parenting skills class. However, the father was discharged from his outpatient treatment because of his expressed desire to leave and expressed intention not to comply with the services and treatment plan. Similarly, the mother was terminated from her court-ordered treatment after continued, unexcused absences from the program. Thus, the Division did provide reasonable efforts to reunify the parents through treatment services which would have helped the parents correct the circumstances which led to the child's placement into foster care.
Alternative placements have been investigated over the course of the case, as indicated by the record. The J.J. family was investigated, but they said they were unable to care for J.B. The paternal aunt, C.B., and much later on, the paternal uncle were suggested by the parents as alternatives. The record does not provide the result of the Division's inquiries respecting C.B. and it rejected the suggestion of the paternal uncle as a potential caretaker because it was made with unexcused and undue delay by the parents. Contrary to the father's assertion, the Division is not required to make every effort, but only reasonable efforts, to find alternatives to termination of parental rights. N.J.S.A. 30:46-15.1(a)(3). The instant case is factually distinguishable from the case cited by the father, Division of Youth & Family Services v. D.H., 398 N.J. Super. 333 (App. Div. 2008), where a five-year-old child was already in the care of a relative, her maternal grandmother, for seventeen months. There, the trial court rejected a Kinship Legal Guardianship (KLG) plan in favor of adoption. Id. at 342. We found KLG was an appropriate permanency plan, which would serve as an alternative to termination of parental rights. Id. at 343.
In contrast, in this case, J.B. has been with his foster parents for his entire life and has never known another home. J.B. has never resided with family members. The suggestion that J.B. be taken from the only home he has known and placed with relative strangers was found, in the opinion of Dr. Loving, an unreasonable alternative that would not be in the best interest of J.B. because of the bond he had established with his foster parents. We agree.
Furthermore, N.J.S.A. 30:4C-11.2(3) provides that reasonable efforts are not required in some circumstances, such as when "the rights of the parent to another of the parent's children have involuntarily terminated." In the instant case, the parental rights of the parents to a combined total of sixteen other children have been terminated. Therefore, even if the Division did not provide reasonable efforts for all possible alternatives to termination of parental rights, it was not statutorily required to do so in this case. Thus, the trial court properly held the third prong of the best interest test was satisfied in this case.
Under the fourth prong, the court must determine whether termination of parental rights would not cause more harm than good. N.J.S.A. 30:4C-15.1(a)(4). This prong cannot require a showing that no harm will befall the child as a result of the severing of biological ties. The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will 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.]
Here, Dr. Loving opined that a disruption of the relationship J.B. has developed with his foster parents would be detrimental to J.B. whereas termination of the relationship with his parents would be of little consequence.
Furthermore, the expert for the defense, Dr. Albin, merely gave a theoretical opinion on the importance of biological ties, yet gave no opinion based on his observations of J.B. that he would suffer any greater harm by the termination of parental rights. Indeed, Dr. Albin recommended "that continued care, custody and supervision by [the Division] should continue." Therefore, the trial court correctly found, based on clear and convincing evidence, that J.B. "will be harmed by disruption of his permanent and stable relationship with his current caretakers, the only family he has ever known."
The father asserts his due process rights were violated because he attended only the first two days of trial, after which he returned home to Georgia for the duration of the trial. We have held that:
Due process requires adequate notice and a fair opportunity to be heard. It is a flexible concept and calls for such procedural protections as the particular situation demands. Evaluation of whether due process requirements have been met is an uncertain enterprise which must discover what fundamental fairness consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake in the circumstances at hand. [Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464-465 (App. Div.), certif. denied, 177 N.J. 575 (2003) (quotations omitted).]
In the instant case, the parents were both provided with transportation to trial in New Jersey from Georgia for the first two days. The mother attended only the first day of trial, while the father attended both days. At the close of the second day of trial, the father requested that he be present for the duration of the trial either in person, by his own arrangements if possible, or by telephone. The court allowed attendance by either means chosen by the father and explained the process of a telephone conference. Neither the father nor the mother participated on the subsequent days of trial.
Both parents, through counsel, requested that their appearance be excused on November 1, 2007, because of telephone difficulties. Similarly, at trial on December 17, 2007, both parents, through counsel, requested that their appearance be excused due to the mother's recent hospitalization. Neither the father nor the mother was present at trial on January 29 or February 7, 2008. The only reason given by counsel for the parents' absence was that both reside in Georgia.
There is no evidence in the record that the father or the mother attempted in any way to participate in trial via telephone on any of these subsequent trial dates. The record is devoid of any objection to proceeding without the presence of the father or the mother, but to the contrary indicates that counsel for the appellants specifically requested that trial proceed with an excused appearance for both appellants which the court allowed. It is only now on appeal that the father raises this due process claim.
In analyzing a due-process claim in the context of a termination of parental rights, we have held:
Due process evaluations typically call for a balancing of pertinent factors in the situation at hand. A particular situation may allow for other forms of participation besides attendance, such as testimony by telephone or deposition. Other states have held that a parent who is incarcerated or otherwise prevented from attending a termination trial can be afforded due process where the parent receives notice, is represented by counsel, and is given an opportunity to testify by telephone or deposition. [M.Y.J.P., supra, 360 N.J. Super. at 468 (citations omitted).]
Here, the judge continued with the trial only after both parents' counsel requested that the court excuse their absence. Furthermore, the father's attorney sent him audiotapes of the proceedings and the judge's decision. Finally, much like the appellant in M.Y.J.P., the father has provided no evidence to suggest that his interests were adversely affected by his own, voluntary failure to appear for the duration of the trial.
There has been no showing that... counsel's cross-examination was adversely affected by the fact that his client was not present in the courtroom.... Thus, the process accorded... was adequate to protect [his] interests, and there is no indication that any procedural safeguards could have been implemented that would have been more fulfilling. [Id. at 469.]
Here, the father was given ample opportunity to participate in the trial. He has not explained why he did not participate by telephone. No objection by counsel was made below and no deprivation of due process has been shown on appeal.