March 1, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
T.G. AND M.G., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF M.G., JR. AND J.G., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-97-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2010
Before Judges Wefing, Grall and Messano.
T.G. and M.G. are the mother and father of M.G., Jr., who was born in August 2005, and J.G., who was born in December 2006. T.G. was sixteen when M.G., Jr. was born, and M.G. was seventeen. The children were removed from their parents' care in March 2007. Since that time the children have lived with a foster family that intends to adopt them. On February 25, 2009, a judgment terminating the parental rights of T.G. and M.G. was entered.
The parents' separate appeals from the judgment of termination have been consolidated, and are opposed by the Division of Youth and Family Services (Division) and the children's law guardian. Because the judgments are supported by evidence clearly and convincingly establishing that termination of the parents' rights is in the best interest of their children, as defined in N.J.S.A. 30:4C-15.1a, we affirm. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).
After T.G.'s mother died in 2003, her father took T.G. and her younger brother and sister into his home in New Jersey. Allegations of abuse were reported to the Division in July and September 2003, but the Division found them to be unsubstantiated.
By the fall of 2004, T.G. had met and developed a relationship with M.G. that was sufficiently tumultuous to bring them to the attention of the juvenile justice system. T.G. was charged with an act of delinquency for conduct that would constitute the crime of unlawful possession of a weapon, a knife, which she claimed she carried to defend herself against a threat of attack from M.G. While released pending disposition of that charge, T.G. engaged in conduct that led to a second charge, terroristic threats directed against M.G. The charge of unlawful possession of a weapon was reduced to disorderly conduct - creating a hazardous condition, N.J.S.A. 2C:33-2a(2), and the State dismissed the charge for terroristic threats. On October 20, 2004, T.G. was placed on probation, required to attend counseling to be arranged by Girlstown and restrained from having any contact with M.G.
T.G. did not comply with the conditions of her probation. As a consequence, in December 2004 her probationary term was extended. In March 2005, T.G.'s continued non-compliance and concerns about her father's drug use and his failure to provide her with adequate supervision led the judge to order an assessment of T.G.'s needs and an investigation of her home.
The judge's action ultimately led to a diagnosis of T.G.'s pregnancy and an adjustment disorder with disturbance of conduct. Ruthann McGoldrick, M.S., NCC, LPC, assessed T.G.'s condition. In addition to T.G.'s possible pregnancy, she noted these circumstances contributing to the then fifteen-year-old's stress - the recent death of T.G.'s mother and problems related to the legal system, education and social supports. McGoldrick recommended individual and family therapy, a complete physical and, if warranted, pre-natal care. McGoldrick also identified barriers to T.G.'s rehabilitation: demonstrated reluctance to participate in a structured program; lack of supervision at home; a poor relationship with her father; and her continued contact with M.G. In McGoldrick's view, if T.G. was pregnant, then continuation of the restraint against contact with M.G. would "create greater stress."
By March 16, 2005, T.G.'s pregnancy was confirmed and her father's drug screen was positive for cocaine and alcohol. Although the Division reported favorably on the conditions in T.G.'s home, her progress in school and her relationship with her father, the judge revised the terms of her probation. The restraint against contact with M.G. was terminated; T.G. was released to the custody of M.G.'s mother; and the Division was appointed as her guardian ad litem. Due to the results of his drug test, T.G.'s father was directed to cooperate with the Division's recommendations.
Shortly after T.G. took up residence with M.G. and his mother, on April 4, 2005, M.G.'s mother took T.G. to the hospital. She reported that M.G. had "punched [T.G.] in the head" and the "stomach." She was bruised and had blood in her urine. M.G.'s mother was concerned; they were arguing constantly. A caseworker from the Division came to the hospital to investigate, but T.G. attributed the blood in her urine to an infection, refused to cooperate and left the hospital. A caseworker interviewed T.G.'s father and, apparently unaware of the terms of T.G.'s probation placing her with M.G.'s mother, wrote a "case plan" under which T.G.'s father agreed to provide a safe, secure and drug-free home for T.G.
On April 11, 2005, the judge modified the terms of T.G.'s probation to require her placement in "Great Expectations" - a program for teenage mothers. The record does not indicate when T.G. was admitted to "Great Expectations," but she left the program. As a consequence, in June 2005 the judge again modified the terms of T.G.'s probation. The restraint against contact with M.G. was reinstated, and domestic violence counseling was ordered.
T.G.'s father made efforts to place T.G. with his parents. On July 21, 2005, T.G.'s probation was terminated on the condition that she move to Puerto Rico and reside with her grandparents. T.G. went to Puerto Rico, but she returned to New Jersey before giving birth to M.G., Jr. in August 2005.
The Division's records reflect no contact with T.G. during the period between June and September 2005, but it is apparent that by September 13, 2005, T.G. and M.G., Jr. were again living with M.G. and his mother. On September 13, M.G.'s mother asked the Division for assistance, reporting that M.G. had attacked T.G. and their newborn son with scissors. In the absence of evidence of any injury, however, the Division concluded that the risk to the child was low and did not intervene.
Weeks later, there was another incident. On October 7, 2005, M.G. assaulted T.G., leaving "marks and bruises." T.G. obtained a temporary restraining order, and the police accompanied her when she went to M.G.'s mother's home to retrieve her belongings. When the police and T.G. arrived, she "went directly to the bedroom," walked over to M.G., Jr.'s crib, pulled out a bag and handed it to the officer. The bag contained "cookies" of crack cocaine, which the officer explained are large bulks of crack cocaine before they are cut up into smaller pieces. It also contained a prescription drug bottle that held "little baggies" with smaller pieces of crack cocaine. M.G. was charged in a juvenile complaint alleging possession of a controlled dangerous substance and simple assault and ultimately ordered to participate in the Future Lives Initiative Program (FLIP) - a program that offers educational and vocational training, individual therapy, group counseling, life-skills, substance abuse awareness, behavior reviews and "Aggression Replacement Training." These were not M.G.'s first charges; he had prior adjudications for delinquency based upon unlawful possession of a weapon and joyriding.
According to the arresting officer, if T.G. had not produced the drugs he would not have found them. In his opinion, T.G. knew exactly where they were hidden. Although M.G. admitted that the cocaine was his, while the officer was present M.G. confronted T.G. He asked her why she was "ratting [him] out" and warned, "Wait until I get out."
Following that incident, the Division determined that M.G. and T.G. neglected M.G., Jr. by exposing him to domestic violence and having drugs in his crib, and opened a child welfare investigation. M.G.'s mother explained that her son did not use drugs but had gotten involved as a seller to make money. T.G. and M.G. later repeated that description of M.G.'s involvement with drugs; nothing in the record indicates that M.G. ever used drugs. The Division closed the case in February 2006, when T.G. and M.G., Jr. were placed in the custody of T.G.'s older sister, who lives in Staten Island.
T.G. did not stay with her sister. She and M.G., Jr. returned to New Jersey, and she resumed her relationship with M.G. On December 13, 2006, T.G. gave birth to their second child, J.G.
On January 12, 2007, M.G.'s FLIP counselor contacted the Division with concerns about the newborn. The counselor reported that M.G., by way of explaining his late arrival, had said the infant had been crying and T.G. was yelling "shut up" and bouncing the child roughly. When the Division's caseworker arrived at M.G.'s home, he and his mother said that T.G. had moved and they were not sure where she was living. M.G. said his FLIP counselor must have misunderstood him, and he assured the caseworker that T.G. was taking good care of the children.
Although the Division concluded that there was no evidence to substantiate a new incident of abuse or neglect, it also determined that child protective and permanency services were warranted. On February 23, 2007, T.G., M.G. and his mother met with a caseworker. They agreed to cooperate with the Division's efforts to provide services. The plan was for T.G. and the children to live with M.G. and his mother.
The Division's plan changed after another incident. In March 2007, T.G. left the home, went to her sister in Staten Island but returned to New Jersey and reported that M.G. had beaten her and taken $800. Around the same time, a neighbor advised the Division that over the past several weeks there had been arguments involving yelling, screaming, cursing, banging and hitting. M.G. was arrested on a delinquency complaint charging conduct that would amount to robbery if he were an adult. He was also charged with a violation of his probation. Although T.G. subsequently tried to drop the charges and attended M.G.'s court hearing with their children, the delinquency case was not dismissed.
On March 13, 2007, the Division removed the children from the home of M.G.'s mother due to the imminent risk of harm from continued exposure to domestic violence in the event of M.G.'s release. On March 14, 2007, the Division filed a complaint alleging abuse and neglect and on March 15, 2007 the Division filed an order to show cause to obtain custody, care and supervision of the children. The court placed the children in the Division's care and directed the Division to provide - and the parents to accept - specified services. The children were examined by a doctor. They were in need of immunization but no medical problems other than colds and diaper rash were detected, and they were treated without the need for prescription medication. The children were placed in the same foster home.
In April 2007, M.G. pled guilty to a violation of probation and, on the charge of robbery, to a lesser charge of criminal mischief. His probation was extended, and he was released on the condition that he complete FLIP, receive domestic violence counseling and have no contact with T.G. By June 12, 2007, however, M.G.'s probation was terminated because he had tampered with his monitoring bracelet. At that time, when M.G., Jr. was twenty-two months old and J.G. was six months old and had been with the foster parents for about three months, their father was sentenced to the custody of the Juvenile Justice Commission and ultimately placed in a residential program.
The initial evaluations of these young parents, which were conducted pursuant to the court's order of March 15, 2007, assessed their respective needs. They had different problems to overcome.
M.G. was evaluated for substance abuse on May 1, 2007. He provided this information about his background. He had completed the ninth grade, never had a job, did not have a driver's license or a high school diploma and relied upon others for his support. Consistent with his negative drug screen, M.G. denied use of drugs or alcohol. He admitted, however, that he had sold drugs in the past, had prior arrests for possession of a firearm and drugs and acknowledged having a difficult relationship with the mother of his children.*fn1 Nonetheless, he stated that he did not view education, vocational training or counseling as important.
Dr. James F. Battaglia assessed M.G.'s psychological condition. M.G. acknowledged a suspension from school for arguing with other students that was imposed when he was only eleven years old, an arrest for joyriding when he was only fourteen and seeing a counselor for a year because of his "attitude in school." Nonetheless, M.G. said he "never really had a temper" and denied all reported instances of domestic violence. Based on testing, the doctor found M.G. to be of average intelligence.
In Dr. Battaglia's opinion M.G. was "incapable of safely parenting his two children due to his problems with impulse control, anger management, poor judgment and lack of understanding of the needs of his children." He found M.G. "quick to blame others for inciting him to act in negative ways," tending to see the world as "unfair," and assuming only "minimal responsibility for his actions." Dr. Battaglia concluded that M.G. had a "distorted" view of "what makes a good parent," because M.G. focused on his past efforts to "buy everything they need" without saying that he "earned the money from selling drugs." While Dr. Battaglia noted that M.G. professed an intention to pursue a new path with the assistance of FLIP, he questioned M.G.'s ability to achieve that goal based on his prior violations of program rules. Dr. Battaglia recommended that M.G. complete FLIP or a comparable program, anger management counseling, parenting skills classes, and vocational training, participate in psychotherapy and obtain employment and his GED.
Dr. Battaglia also evaluated T.G. He described her as follows: "passive and manipulative," "sad," "naïve" and functioning like a "younger child." In his opinion, her intelligence was in the low-average range and she had minimal insight. Dr. Battaglia recommended counseling to address T.G.'s low self-esteem, depression, and frustration. He also suggested participation in parenting classes, a support group for domestic violence survivors, vocational training and a GED program.
The parents were given the opportunity to receive needed services. They responded differently.
Services for M.G. were provided through FLIP while he was on probation and arranged by the Juvenile Justice Commission after his probation was revoked on June 12, 2007 for tampering with his monitoring bracelet. Between September 2007 and October 2008, he lived in the Voorhees Residential Community Home (Voorhees).
At Voorhees, M.G. received basic educational and vocational training, aggression replacement training, individual counseling and participated in group sessions. He was diagnosed with a learning disability, and he made progress. Arrangements were in place to permit him to take a GED test prior to his release and return to high school at the end of his term if necessary to obtain his diploma. Beginning in January 2008, M.G. participated in a work-study program, which allowed him to work at Wal-Mart thirty-five hours per week while residing at and participating in the programs offered through Voorhees.
While a resident of Voorhees, M.G. saw his children every other week. The location of the visits alternated between the Division's office and Voorhees. According to the supervisors, during those visits M.G. fed, changed and cared for his children and was always appropriate, even when his facial expressions conveyed, according to one Division employee, some frustration with M.G., Jr.'s behavior. During the time between the children's removal and the time of trial, M.G. missed one scheduled visit with the children.
In January 2008, the Division informed M.G. that it planned to seek termination of his parental rights. M.G. vowed to "continue to attend services in order to get his children back."
On February 5, 2008, Voorhees summarized M.G.'s progress as of follows:
[He] has been a positive resident in the program for the past few months. . . . He has utilized the tools of [the] program to help him deal with personal issues and stress. He has set goals for himself and is working hard to attain these goals, e.g., GED and obtaining employment. [M.G.] has been very active in trying to work towards complying with Your Honor's request that he attend the Domestic Violence Classes.
M.G.'s participation in a domestic violence program was subsequently arranged, and he completed that program before he was released in October 2008. Parenting classes were not arranged. Following his release, on referral of the Juvenile Justice Commission, M.G. enrolled at the Kintock Group, Community Resource Center for educational training and out-patient counseling. He did not, however, follow-up with the Division to arrange for enrollment in parenting classes.
Dr. Donna LoBiondo conducted a bonding evaluation in August 2008 and a psychological evaluation of M.G. in September 2008, about two weeks before his release from Voorhees. She found that M.G. had come to recognize the ramifications of his earlier involvement in drug-dealing and that his conduct was not only illegal but wrong. M.G. denied that there was any domestic violence in March 2007 while admitting that he had on other occasions hit T.G., but claimed that he had always acted in an effort to escape her assaults against him. In his view, the children could not have been harmed by the arguments because his mother was there and was taking care of them.
In Dr. LoBiondo's opinion, psychological testing showed that M.G.'s beliefs and attitudes about parenting were generally consistent with those of an average parent. The exceptions were his scores on "family roles"; those scales reflected an "above average" understanding of alternatives to use of physical force, respect for children and their needs and "value placed on the mutual parent-child relationship." Acknowledging that M.G. responded well in the structured environment at Voorhees, she questioned his ability to function in the community without a high school diploma, a job or a home and noted that delay to determine whether he would mature and function would be harmful to the children.
Dr. LoBiondo also found that M.G. had a bond with his children that was sufficiently strong to foster development, as strong as his children's bond with their foster father but not equivalent to the "positive strong bond" that they had with their foster mother. At trial, Dr. LoBiondo testified that given the strength of the children's attachment to their foster parents, separating the children from them "would be a tremendous trauma."
In Dr. LoBiondo's opinion, M.G. lacked the requisite maturity and was ill-equipped to help the children deal with the trauma they would suffer if separated from their foster parents. While M.G. acknowledged that his children had been in their foster home for a long time, he told Dr. LoBiondo he did not expect that they would be upset or require "anything special" if they were removed from that home. M.G. explained that his children did not view him as a stranger.
Based upon M.G.'s responses to her questions about the children's emotional needs upon removal from their foster home, Dr. LoBiondo concluded that he lacked sufficient insight, empathy and emotional maturity to see beyond his own needs. In her opinion, M.G. remained unable to separate his pain from the needs of his children, who were at "a critical developmental point." Thus, she reasoned, because he lacked an understanding of the difficulties his children would encounter upon separation from their foster home, they would be "at risk for attachment pathology" if returned to M.G., even though he was otherwise "very nurturing," "attentive, warm [and] caring." In her view, M.G.'s children did not have time to wait for M.G. to acquire the essential understanding and empathy, regardless of whether the deficiency was caused by lack of maturity or a personality disorder.
T.G.'s services were provided through the Division in the community. She did not consistently attend visitations and on several occasions angrily confronted others - M.G., before he was placed in Voorhees, the supervisors of the visitation and her sister. In 2007, T.G. missed visits on November 8, 15, and 22 and December 13 and 27. The mid-December visit was scheduled to permit a celebration of J.G.'s first birthday. In 2008, T.G. continued to miss visitations - she failed to attend on January 3 and 31 and February 28. On July 25, 2008, T.G.'s visitations were terminated due to her failure to appear.
Despite her poor attendance and confrontations with others, T.G.'s interaction with her children was appropriate. The reports include only positive comments.
T.G. also missed appointments for services. She did not attend her initial appointment for parenting skills classes on May 24, 2007, and, as a consequence her enrollment was delayed until August 2007. Although she attended in August, she missed classes on September 27, October 15 and 23, and November 12, 2007. T.G. failed to attend two initial appointments for domestic violence counseling, which were scheduled for October 17 and 23, 2007.
In November 20, 2007, a caseworker gave T.G. a letter outlining her obligations to comply with the court's order; T.G. directed the caseworker to "tell the judge" that she was not going to attend parenting classes, anger management, domestic violence counseling, or individual counseling, and ripped up the letter. The caseworker arranged for a mentor to assist T.G., but T.G. did not cooperate.
Although the court approved the Division's plan to proceed with termination of parental rights and adoption on February 11, 2008, the judge also directed the Division to continue services and explore the potential for M.G.'s brother to assume responsibility for the care of the children. As late as July 25, 2008, the court again ordered T.G. to attend parenting skills training, anger management, and domestic violence training, but the court suspended T.G.'s visitation because she was not attending.
On September 11, 2008, Dr. LoBiondo conducted a bonding evaluation of T.G. and the children, as well as a psychological evaluation of T.G. She observed T.G. to be "bored" and "disengaged" with M.G., Jr., to the point that the child "gave up" his effort to interact with her and played quietly by himself. Dr. LoBiondo found that their communication was "stilted and forced." Her opinion of T.G.'s interaction and bond with J.G. was not materially different: T.G. did not engage J.G. or praise the child when she was successful in playing with the toys; J.G. appeared to "ignore" her mother and at one point T.G. appeared to be ignoring her daughter. Dr. LoBiondo described the atmosphere as "empty and quiet" with "little true interaction," and she concluded that there was "no clear emotional bond" between mother and daughter.
During T.G.'s psychological assessment, she was "humorless and sober," "guarded," "sad [and] occasionally angry." In her opinion, T.G. had "put in little effort" to regain custody of her children and "gave up."
T.G. acknowledged that she had been discharged from programs for anger management and parenting skills due to unexcused absences and admitted to occasional use of marijuana, most recently ten days prior to the evaluation. She said she had not attended domestic violence counseling because she did not "have an interest or feel the need to do so." When questioned further about domestic violence, T.G. left the evaluation. Dr. LoBiondo opined:
[T.G.] presents as emotionally dependent and depressed, and impresses as already having given up on regaining custody of her children. She is unemployed and making little effort to get a job. She had not complied with [Division] rehabilitation efforts and admits that she failed to attend treatment for no particular reason. She admits that she missed visits with her children but offers no explanation. She acknowledges that violence between her and the children's father was probably damaging to the children but other than that she had little insight into that troubled relationship or her role in it and rejects the idea of counseling to understand this more fully.
With regard to parenting, [T.G.'s] results on a basic parenting inventory indicate gaps in her understanding, and she could benefit from basic parenting education. Other than this she does not appear motivated to parent her children or put forth much effort to convince me that she can do so, and admits that she is conflicted about surrendering her parental rights.
In Dr. LoBiondo's opinion, it would not be in the best interest of the children to be returned to T.G. because she was ill-equipped to care for them and because the children were "securely attached" to their foster parents.
The Division did not find a relative of either parent willing and able to assume responsibility for care of the children. Two of T.G.'s older sisters expressed interest, but one changed her mind and the other was ruled out because she worked full-time during the day and part-time in the evening. T.G.'s cousin was considered, but she had just moved to a new apartment and said she could not accommodate the children.
M.G.'s mother was ruled out because she had been found responsible for neglect by allowing the domestic violence in her home.
M.G.'s brother was also considered. Apparently in response to a court order of February 11, 2008, a caseworker called him on February 14, 2008.
The Division and M.G.'s brother had different versions of their conversation. According to the Division, M.G.'s brother was not given extensive consideration as a potential caregiver because he said he was living in a one bedroom apartment, would need financial assistance to acquire a suitable apartment and would require assistance with childcare in the morning because he was required to report for work by 5:30 a.m. The Division records reflect that the caseworker who spoke with him in February suggested he contact the Division if he found a bigger apartment and could arrange his work schedule but told him that the Division could not help with rent.
M.G.'s brother explained that he works for the Paramus Department of Public Works. He has held that job for about ten years and earns over $40,000 per year. Although he said he must report for work by 5:30 a.m., he also said he could address the problem of early morning care if his girlfriend moved in and could help him. According to M.G.'s brother, when the conversation ended he understood that the Division was taking the position that the children should remain in their foster home.
In September 2008, M.G.'s brother spoke with a different caseworker, who recalled calling him at M.G.'s request and trading phone calls before making contact. The Division concluded that because the plan was for adoption, it would be better to leave the children in the very safe and healthy environment in which they were living. No effort was made to clarify the nature of the financial assistance he needed or the availability of funds.
M.G.'s brother acknowledged that he had not had any contact with the children during or after the period of his brother's confinement in Voorhees. At trial, he said if assistance was not available he could probably find a way to secure an apartment that would accommodate the children, but had not done so because he understood that the Division had decided the children should be left with foster parents.
Although T.G. and M.G. had both told Dr. LoBiondo that their relationship had ended and both professed their intention to remain apart, M.G.'s bother testified that he had seen both of them on the eve of New Year 2009.
On the foregoing evidence, the trial judge concluded that the Division established grounds for termination of the parental rights of T.G. and M.G.
On their separate appeals, both parents contends that the Division failed to establish grounds for termination. There can be no dispute about the legal standards.
N.J.S.A. 30:4C-15.1a sets forth, in four prongs, the elements the Division must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parents' right to have a relationship with their children, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm, In re Guardianship of J.C., 129 N.J. 1, 10 (1992). In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999).
The Division must show:
(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-15.1a.]
As the Supreme Court has explained, these statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).
The standards governing this court's review are also clear. A trial court's determinations are entitled to deference. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). When a judge has applied the standards and found them satisfied on the basis of facts that are supported by "adequate, substantial and credible evidence," we must uphold the findings. Id. at 279 (internal quotations omitted). If the record provides the requisite support for the factual findings, intervention by a reviewing court is warranted only if the determinations are based upon a misunderstanding of the law or the implications drawn from the facts found are "so wide of the mark that a mistake must have been made." Ibid. (internal quotations omitted).
Applying those standards, we turn to consider the parents' challenges to the trial determinations.
T.G. and M.G. both contend that the evidence did not permit the judge to find that the children's safety, health or development had been or would continue to be endangered by their relationship with her. N.J.S.A. 30:4C-15.1a(1).
In an opinion addressing T.G.'s role, the judge found: the circumstances of the parents physically attacking one another deprived the children of a safe and secure environment by causing them to be fearful and upset; T.G. placed the children in harm's way by violating court-ordered restraints against contact with M.G., by "conspiring with [M.G.] to 'use' the children as part of their drug dealing" and by being aware of and permitting drugs to be stashed in the baby's crib; and that T.G. employed "excessive corporal punishment" by "excessive bouncing of [J.G.]."
In an opinion addressing M.G., the judge also relied on the detrimental impact of M.G.'s domestic violence and his placement of drugs in the baby's crib. The judge found that the evidence of drug dealing was "most likely the 'tip of [an] iceberg'" of substantial involvement.
The parents contend that the judge's decisions relevant to "harm" are based on factual findings that are not supported by the record. We agree that some of the assumptions lack evidential support and that a few facts are misstated. There is no competent evidence that the babies were in fear or upset by the incidents of domestic violence, that T.G. bounced the baby in a manner that amounted to corporal punishment, that T.G. and M.G. conspired to use their children in the sale of drugs, that the evidence of drug dealing was "most likely 'the tip of the iceberg,'" or that M.G. would "resume the drug and criminal lifestyle" or become a user. If we perceived the trial judge's decision relevant to the first prong of the statutory standard to be dependent upon those unsupported assumptions, we would reverse;*fn2 but we do not.
Where the trial judge's legal analysis and findings are confusing and misdirected, an appellate court may review "the underlying evidence and the court's findings of fact . . . to ascertain whether the evidence fulfills the best interests standard of N.J.S.A. 30:4C-15.1(a)." D.M.H, supra, 161 N.J. at 378.
The first prong of the best interest standard can be established by showing that the parent has harmed or will continue to harm the child if the parent-child relationship is allowed to persist. N.J.S.A 30:4C-15.1a(1); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 412 (1999). That "harm" includes "endangerment of the child's health and development resulting from the parental relationship," and "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. It must be harm "likely [to] have continuing deleterious effects on the child." Id. at 352.
Discounting the hyperbole, the evidence establishes the first prong. These parents continued their tumultuous relationship and left it to M.G.'s mother to care for the children. They shared the knowledge that the "cookies" of cocaine, which were to be broken for drug sales, were stored in the baby's crib. That is sufficient to support the determination that the children were endangered by their relationship with their parents. The parents contend that there is no direct evidence that the drugs and the baby were in the crib together or that the children were in the apartment when the cocaine was seized. That is correct, but the circumstantial evidence supports the inference that M.G., Jr. was living in the apartment immediately prior to the seizure. He was living with T.G., M.G. and his paternal grandmother, and the incident of domestic violence that led to the discovery of the cocaine occurred the night before the seizure.
Relying on this court's decision in N.J. Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), the parents also contend that there is no evidence that these children were harmed by the domestic violence. In S.S., this court held that in the absence of evidence of any negative impact on the child, a court may not assume that a child has been harmed because the child has witnessed domestic violence. The trial judge's finding in this case, as we understand it, was based on the parents' respective roles in creating conditions in the home that were unsafe and unstable - cocaine in the child's crib, their admission of contributing to the support of the child only through M.G.'s drug sales and repeated arguments sufficiently loud and violent to attract the attention of a neighbor and cause M.G.'s mother to seek medical assistance and the assistance of the Division. Based upon that course of conduct, the trial judge's findings that are supported by the record are sufficient to establish that both parents "fail[ed] to take responsibility for [the] children" or perform "substantial parental functions." D.M.H., supra, 161 N.J. at 383. While the record by no means compels that conclusion, it provides adequate support to permit the finding.
The question remains whether the Division established the second prong - the parent's inability to overcome the harm endangering the child's health and safety. K.H.O., supra, 161 N.J. at 352. That prong may be established by showing: 1) that "the parent has [not] cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is [un]able to continue a parental relationship without recurrent harm to the child"; or 2) that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm."
K.H.O., supra, 161 N.J. at 348-49; see N.J.S.A. 30:4C-15.1a(2). Courts must consider "measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development"; they are indicative of ability to overcome the harm. K.H.O., supra, 161 N.J. at 352. Conversely, conduct reflecting "parental dereliction and irresponsibility," such as continued "inability to provide a stable and protective home" or "the withholding of parental attention and care," establishes the second prong. Id. at 353. Of great relevance in this case, parental irresponsibility includes "'prolonged inattention to a child's needs, which encourages the development of a stronger, bonding relationship to foster parents,' which if severed could cause the child profound harm." Id. at 352 (quoting N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996)).
The trial judge found that T.G. remained unable or unwilling to provide a safe and stable home for her children and that the delay of permanent placement would add to the harm. This determination is supported by the record and consistent with the legal standards. T.G. did not take adequate measures to maintain the relationship or acquire the parental competency to provide a stable home, and her delay allowed the children to develop a stronger bond with their foster parents. The judge's determination is supported by substantial credible evidence in the record as a whole and consistent with the applicable law.
T.G. does not argue otherwise. Focusing on her claim that the Division failed to establish the initial harm, she contends that the Division could not have shown her inability to remove or overcome harm. Because we have concluded that there was sufficient evidence of harm, this claim requires no further discussion. R. 2:11-3(e)(1)(E).
With respect to M.G., the judge acknowledged his compliance with all services offered at Voorhees while he was in that structured residential program. That progress was indisputably significant and allowed M.G. to maintain an adequate bond with his children. Nonetheless, relying on Dr. LoBiondo's opinion, the trial judge found no reasonable probability that M.G. would develop the maturity and parental capacity essential to ameliorate the harm the children would endure if their strong positive bond with their foster mother and their bond with the foster father were severed. The judge also found "no reasonable probability" that M.G. would gain the maturity to "safely parent the children within the time required to avoid profound harm to the children."
The question is not whether this court would have reached the same decision, but whether we must conclude that the judge's decision is so manifestly contrary to and unsupported by the record as to be clearly mistaken. M.M., supra, 189 N.J. at 279. There is no error of that quality in this case.
The third prong of the statutory standard requires an assessment of the adequacy of the Division's efforts. N.J.S.A. 30:4C-15.1a(3), c. The Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that led to the child's removal from the parent. N.J.S.A. 30:4C-15.1a(3). "The reasonableness of the Division's efforts depends on the facts in each case." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
T.G. and M.G. contend that the Division did not take adequate steps to place the children with M.G.'s brother. While it is difficult to understand the Division's cursory response to the judge's directive to investigate M.G.'s brother as a potential custodian, the trial judge did not credit the brother's testimony about his willingness to assume responsibility for the children. We are bound by the trial judge's assessment of credibility. M.M., supra, 189 N.J. at 279. Moreover, given the foster parents' willingness to adopt, even if M.G.'s brother were willing to assume responsibility, kinship legal guardianship would not have been an option available as an alternative to termination of parental rights. See N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 513 (2004).
The trial judge addressed the fourth prong of the statutory standard and concluded that severance of the children's ties with their parents would not do them more harm than good. The judge relied largely upon Dr. LoBiondo's testimony, which provides ample support for that determination. R. 2:11-3(e)(1)(A).
In conclusion, the trial judge's decision that termination of both parents' parental rights is supported by sufficient evidence establishing that termination is in the best interests of their children. There is a point when "[k]eeping the child in limbo, hoping for some long term unification plan" that will permit even "morally blameless" parents to become available to care for their children is "a misapplication of the law." A.G., supra, 344 N.J. Super. at 438. The judge was not wide of the mark in concluding that the end-point for efforts to reunify either of these parents with their children was reached in this case.