July 19, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF S.A.H., A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.H. AND C.H., DEFENDANTS-APPELLANTS,
IN THE MATTER OF GUARDIANSHIP OF S.A.H., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FN-12-174-07 and FG-12-67-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2010
Argued June 2, 2010
Before Judges Grall, Messano and LeWinn in Docket No. A-2895-08T4.
Before Judges Wefing, Messano and LeWinn in Docket Nos. A-0414-09T4 and A-0415-09T4.
We have consolidated these appeals for the purpose of issuing a single opinion. Defendant S.H. and her husband, defendant C.H., are the biological parents of S.A.H., born January 12, 2007. Within days of her birth, the Division of Youth and Family Services (DYFS or the Division) removed S.A.H. from her parents' custody and placed her in a foster home where she has remained ever since.
After initiating Title 9, N.J.S.A. 9:6-8.21 to -8.73, litigation against both defendants and after a finding of abuse and neglect was entered against C.H., DYFS began guardianship proceedings under Title 30, N.J.S.A. 30:4C-11 to -14. Those proceedings culminated in an order terminating both defendants' parental rights over S.A.H. In A-2895-08, S.H. appeals from the January 6, 2009, Family Part order dismissing the Title 9 litigation. S.H.*fn1 raises the following points on appeal:
I. THE PROCEEDINGS BELOW VIOLATED [S.H.'S] CONSTITUTIONALLY PROTECTED DUE PROCESS RIGHTS (Not Raised Below)
A. The Trial Court's Failure to Hold a Fact Finding Hearing Did Not Comport With Statutory Requirements And Violated The Principles Set Forth in G.M.
B. The Trial Court's Finding That [C.H.'s] Prior Conviction For A Sexual Offense Constituted Per Se Abuse and Neglect Was Reversible Error
C. The Initial Removal of [S.A.H.] From The Custody Of Her Mother Was Not Supported By Sufficient Credible Evidence That [S.A.H.] Was In Imminent Danger
II. THE TRIAL COURT ERRED IN APPROVING THE DIVISION'S PERMANENCY PLAN BECAUSE DYFS FAILED TO MAKE REASONABLE EFFORTS TO REUNIFY [S.A.H.] WITH [S.H.] (Raised Below)
DYFS contends that S.H. never raised any due process challenges during the proceedings below. On the merits, DYFS contends that S.H. was not denied due process and that sufficient cause existed to grant DYFS custody of S.A.H. DYFS also argues that the judge properly affirmed the permanency plan of termination followed by adoption.
The Law Guardian argues the appeal should be dismissed as moot; alternatively, she contends that any failure to conduct a "fact-finding" hearing was not reversible error in light of the subsequent permanency hearing, and that approval of the permanency plan was appropriate under the circumstances.
In A-0414-09 and A-0415-09, S.H. and C.H. respectively appeal from the order entered in the Title 30 proceedings that terminated their parental rights. S.H. raises the following issues on appeal:
I. DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE [S.H.'s] PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS (Raised Below)
A. [DYFS] DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDING THAT THE HEALTH AND DEVELOPMENT OF [S.A.H.] WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP
B. [DYFS] DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT [S.H.] WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING [S.A.H.]
1. [S.H.] HAS SHOWN THAT SHE IS WILLING TO ELIMINATE THE HARM BY COMPLYING WITH ALL OF [DYFS'S] PREREQUISITES TO REUNIFICATION
2. [S.H.] CAN ELIMINATE THE HARM IF SHE IS GIVEN PROPER SERVICES
C. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE DYFS FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [S.H.] CORRECT THE CIRCUMSTANCES WHICH LED TO [S.A.H.'S] PLACEMENT OUTSIDE THE HOME.
D. [DYFS] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF [S.H.'S] PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
C.H. raises the following arguments on appeal:
THE TRIAL JUDGE BELOW DID NOT PROPERLY ANALYZE THE BEST INTEREST TEST AS TO C.H.
A. THE TRIAL COURT IMPROPERLY DETERMINED THAT S.A.H.'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE ENDANGERED BY C.H. AND SHOULD BE OVERTURNED
B. DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO REUNITE S.A.H. WITH HER PARENTS, NOR DID THE COURT CONSIDER ALTERNATIVES TO TERMINATION
C. THE TRIAL COURT [sic] DID NOT PROVE [sic] BY CLEAR AND CONVINCING EVIDENCE THAT MORE HARM THAN GOOD WOULD BEFALL S.A.H. IF C.H.'s PARENTAL RIGHTS WERE TERMINATED [sic]
Both DYFS and S.A.H.'s law guardian argue that all four prongs of the statutory test were proven by clear and convincing evidence. They both urge us to affirm the termination order.
In December 2006, DYFS received a referral from a Middlesex County probation officer that S.H. was pregnant and shortly due to give birth. It was reported that C.H. was the father of the child, that he was a convicted sex offender, and that both parents were bipolar, not complying with their medications, and had engaged in domestic violence.
C.H., who was thirty-two years old at the time, had been convicted in 1999 of second-degree aggravated sexual assault involving a four-year old girl; he was sentenced to seven years imprisonment, was required to register as a sex offender pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19, and was under community supervision for life after his release from custody in 2004. S.H. was almost twenty-five years of age when S.A.H. was born.
Defendants met at a rooming house in New Brunswick and married in 2005. Based upon what C.H. had told her, S.H. believed his prior conviction involved an alleged sexual relationship with a sixteen-year old girl who represented herself to be older; S.H. did not know until after the marriage that C.H.'s conviction involved a four-year old child. Defendants continued to reside in New Brunswick and received assistance from the county Board of Social Services as their sole financial support.
C.H., who was required to report to parole on a weekly basis, sought permission to reside in the same home with S.A.H. after her birth. Through parole, two psycho-sexual evaluations were performed and both concluded that C.H. could not reside in the same home with S.A.H. Furthermore, the reports concluded that any visitation between C.H. and his daughter should be supervised.
DYFS interviewed both parents, as well as S.H.'s psychiatrist, Dr. Daniel Cowan, who indicated that she was demonstrating signs of depression and had difficulty dealing with her anger. S.H. told DYFS that although she was "willing to allow [C.H.] to reside in a separate household," she did "not understand why he c[ould] not live in the home and she supervise the baby." S.H. claimed she was diagnosed as bipolar and told DYFS that she was not taking her medication during her pregnancy, as per her doctor's instructions.
On January 18, 2007, DYFS filed a verified complaint seeking custody of S.A.H. pursuant to Title 9, and a hearing was held. S.H. was represented by counsel; C.H. appeared pro se. DYFS caseworker Natasha Grisbin testified that the Division was concerned since C.H. was a "Megan's Law offender," and S.H. had questionable "ability to supervise and protect the child." In addition, Grisbin noted that S.H. lacked any "family support" and the Division had "concerns regarding her ability to actually protect the child and not become overwhelmed with the stress of dealing with a newborn baby."
S.H. testified that C.H. was looking for alternate housing, though she did not believe he posed any risk of harm to S.A.H. C.H. testified and took issue with the facts surrounding his sexual assault conviction. C.H. claimed that he sexually assaulted the four-year old girl because her mother, who was also his ex-girlfriend and the mother of his son, locked him in a room with the child and threatened that he would not see his son again. S.H. had similarly reported this version of the events when interviewed by DYFS, stating that she believed C.H. and not the claims of his ex-girlfriend.
The judge entered the order to show cause granting DYFS custody of S.A.H. because of C.H.'s "sexual assault on a 4 year old child... and serious concern re: both parents['] capacity to protect the child due to alleged denial [and] mental health." He found there existed a risk of harm to S.A.H. since C.H. could not live in the same home, and "there [wa]s a question about [S.H.] being able to police this requirement." The judge noted that S.H. was an "apologist" for C.H.'s behavior regarding the sexual assault.
On February 6, the return date of the order to show cause, S.H.'s counsel indicated that she had resumed taking her medication, and that C.H. was willing to move out of the home if S.A.H. returned. The judge continued the order granting DYFS custody of S.A.H., finding "it continue[d] to be contrary to the welfare of the child for the child to be returned home to the mother."
On June 29, in lieu of a fact-finding hearing, DYFS moved for "a summary finding against [C.H.] alone." C.H. was present along with his attorney; neither S.H. nor her attorney was present.*fn2 DYFS argued that for purposes of the Title 9 proceedings, "the availability of one parent," S.H., "to parent... [wa]s relevant to [the] dispositional phase of th[e] case." But, pursuant to Title 9, "a child is deemed abused or neglected when a parent has committed an act or poses a risk." C.H. again indicated his willingness to move out of the home. The judge entered an order granting the motion as to C.H., finding that his conviction "incapacitate[d] [him] from complying with his statutory responsibilities to his child pursuant to Title 9, and thus [the] child was at risk...."
Although DYFS's original plan was to reunify S.A.H. with S.H. alone, in January 2008, the Division concluded that termination of parental rights followed by adoption was necessary. A trial on the proposed permanency plan took place over five months between January and May 2008.
In a thorough written opinion that accompanied her order of July 16, the judge reviewed the testimony in detail, including that of S.H. and her psychological experts. The judge cited concern for "[S.H.]'s long-term history of mental health issues, leading to her most recent... hospitalization in March 2008." She also expressed "concern over [S.H.'s] deficiencies in organization skills and... impulse control[,]... her inability to find... stable housing... her inability to take public transportation or hold down unskilled employment...." The judge also determined that DYFS "ha[d] made reasonable efforts to reunify [S.A.H.] with her mother through parenting courses, supervised visitation..., counseling... [and] ha[d] worked albeit unsuccessfully with [S.H.] to locate appropriate housing."
By order dated July 16, the judge approved the permanency plan for termination of parental rights followed by adoption. On January 5, 2009, DYFS filed a complaint for guardianship pursuant to Title 30. On January 6, the judge dismissed the Title 9 abuse and neglect litigation and continued DYFS's legal and physical custody of S.A.H. S.H. filed her appeal from this order on February 6.
In August, a three-day guardianship trial took place before another Family Part judge. Tyesha Johnson, who had testified at the earlier permanency trial, was the DYFS caseworker assigned to defendants from June 2007 until October 2008. The screening summary from January 2007 revealed that C.H. admitted that he "suffer[ed] from bipolar and t[ook] medication," although it was unknown if he was compliant at the time since he was unable to tell DYFS what medication had been prescribed. It was further noted that C.H. had a history of suicide attempts, "might become violent," and that there were recent allegations of domestic violence between the couple. The screening summary also revealed that the home where the couple lived was "not suitable for a baby." Both parents were on welfare at the time, and waiting "for disability to process them as a married couple."
S.H. had a significant history of psychiatric problems that began when she was twelve. Her daughter from a prior relationship had been removed from S.H.'s custody in 2004. That child was "adopted" and living in Minnesota with an aunt.*fn3 S.H. was in the Pre-trial Intervention Program because her prior boyfriend, the father of her other daughter, forced her to steal and use her grandmother's credit card.
Johnson noted that DYFS contacted family members regarding possible placement of S.A.H., but all were "ruled out." C.H. offered his brother as a placement option, but he was rejected because DYFS maintained an open case involving him. C.H.'s maternal aunt, J.B., expressed interest in caring for S.A.H. but was rejected because her son, who resided with her, had a criminal record. S.H.'s grandfather contacted DYFS, was interested in caring for S.A.H., but was ruled out when S.H. indicated that she did not want him to care for S.A.H. because he had a history of domestic violence.
S.H. contacted DYFS in February 2007 advising that she no longer resided with C.H. and planned to divorce him. However, a few days later, S.H.'s cousin contacted the Division claiming that S.H. was pretending to be separated from C.H. in order to regain custody of S.A.H. DYFS also attempted to find a supervised, structured residential mental health program for S.H. However, Johnson testified that it was unclear in the first months after S.A.H.'s removal whether C.H. and S.H. would indeed separate.
Defendants were referred to Multicultural Services Family Support Services (MCS); it performed an assessment of their therapeutic needs in February 2007. MCS also provided transportation to facilitate therapeutic, supervised visitation with S.A.H. on a biweekly basis. Initially S.H. did not miss her supervised visits with S.A.H. and C.H. also regularly attended. The visitation between defendants and S.A.H. was generally described as positive.
S.H. was evaluated by psychologist Jonathan D. Wall in March 2007. She told Wall that she had a difficult upbringing, including a physically abusive relationship with her mother and sexual abuse by her maternal aunt's husband. S.H. also told Wall that she cut her wrists in 1997, carved messages on her calf, and attempted to stab herself with a knife. S.H. falsely represented that C.H. no longer resided with her and claimed he had moved in with his brother. S.H. anticipated she would receive disability, take care of S.A.H. alone, and that C.H. would possibly live with them when he finished his parole, which S.H. believed would be in fourteen years.
Wall concluded that S.H.'s intelligence was "low average" and that she was "disabled with... Bipolar Disorder." He questioned S.H.'s ability to parent S.A.H. based on her continued involvement with C.H. and her misrepresentations that she was not residing with C.H. He further opined that based upon "her history of aggressive and impulsive behavior[,]"
S.H.'s "reasoning and self-control [were] not always intact." Wall concluded that S.A.H. could be reunited with her mother only if S.H. was "actively involved in a structured residential and day hospital program. [S.H.] would need daily contact with case managers." Wall was "skeptical [that] [S.H.] w[ould] be forthright if and when there ever [wa]s a conflict between her wish to be with her child as opposed to being with her husband."
Wall also conducted a psychological evaluation of C.H., who reported that he had been suicidal since age fourteen and had attempted to kill himself in 2005 by ingesting sleeping pills and pain medication. Prior to his incarceration, C.H. attempted suicide by crashing his car and cutting his wrists. C.H. reported that he was bipolar and had a borderline personality disorder. Wall concluded that C.H. "suffer[ed] from an entrenched psychiatric illness with Avoidant and Borderline/Antisocial personality traits[,]" and demonstrated "reckless behavior, depressive, paranoid thoughts that are psychotic in nature." Wall recommended only "professional supervision" for any visitation with S.A.H. In May, MCS was notified that C.H. had violated his conditions of parole having not attended his weekly "sex offender counseling" since March.
In July 2007, Dr. Alexander Iofin conducted a psychiatric assessment of S.H. "in order to determine if [she] [wa]s in fact suffering from identifiable psychiatric pathology... [and] to give practical recommendations about treatment... and level of services that she will require." He concluded that S.H. "will require lifelong follow[-]up with a mental health clinic located in geographic proximity to the household." In an addendum to his report dated July 22, 2007, Iofin opined that S.H. is unable "to be considered as a minimally adequate parent for her newborn child."
Iofin also evaluated C.H. C.H. reported that he again attempted suicide in February by trying "to cut his throat." Based on C.H.'s past history of drug abuse, sexual assault, and instability, Iofin opined that C.H. would require continued mental health services at a proximate clinic, and maintenance of his "psychotropic medication regimen." Iofin further opined that "it [wa]s unreasonable to put another child" in C.H.'s care and advised against unsupervised visitation.
As part of her efforts to follow Wall's recommendations regarding a residential program for S.H., Johnson spoke with Victoria Lipinski, a therapist who had been counseling S.H. at UMDNJ. Lipinski, however, was unaware of any appropriate residential programs and suggested that DYFS search for out-of-state programs.*fn4
DYFS caseworker Erika Wurtzel, who took over the case after the permanency plan had changed, testified that supervised visitations between defendants and S.A.H. became problematic at the end of 2008. S.H. claimed that she was sick, and missed virtually every visitation for "a couple of months." C.H. also missed his visits because of "his parole appointments" or his own health problems. Wurtzel testified that defendants moved from New Brunswick to South River, and, that despite S.H. often telling her that C.H. was leaving the home, the couple continued to reside together after the move.
Helen Saliman, the DYFS caseworker from May 2009 through trial, testified that on June 12, DYFS received a referral that S.H. was pregnant, not using her medication, and there had recently been domestic violence in the home. Saliman made a home visit; S.H. denied all the allegations, even showing Saliman a bottle of prescription drugs she claimed she was taking. However, S.H.'s therapist confirmed that she was indeed pregnant and again off her medication. Saliman described the apartment defendants were living in as "dirty," with "things all over the place."
Dr. Vivian C. Shnaidman evaluated S.H. and C.H. on May 20. S.H. reported to Shnaidman that "she was in an abusive relationship and subject to domestic violence." A screening report from January 2009 revealed DYFS had received information that C.H. had physically assaulted S.H. shortly after S.A.H.'s birth, and that domestic violence continued to be part of the relationship. Shnaidman noted that S.H. "ha[d] a significant history of mood instability and behavioral problems, for which she has been treated with both medication and psychotherapy, but with minimal efficacy." Shnaidman concluded that S.H. was not "capable of appropriately parenting [S.A.H.]"
Regarding C.H., Shnaidman noted that "[e]ven if [C.H.'s] instant offense represent[ed] his only sexual misconduct, we cannot possible [sic] consider him an appropriate caretaker for a young girl. In addition to the sexual offense, [C.H.] admit[ted] to numerous additional criminal offenses...." He also met the "criteria for Antisocial Personality Disorder, and... Borderline Personality Disorder." In conclusion, Shnaidman found C.H. to be "a poor candidate for fatherhood" since "his chronic mental instability would only have a detrimental effect on any child in his care."
With respect to S.H. and C.H. as a couple, Shnaidman opined that the results of their parenting would "be quite disastrous, and include neglect, sexual violence, substance abuse, and exposure to crime." She opined that "[t]he best interests of [S.A.H.]... would be served by placing her with a family which would not expose her to such negative influences and give her a chance to grow physically and mentally healthy."
Dr. Jason S. Fleming, who had conducted a series of evaluations, was the Division's expert at trial. In his evaluation of S.H., Fleming found that although she clearly desired to care for her daughter, she "ha[d] an ongoing history of emotional problems, problematic relationships, difficulties sustaining positive progress... and trouble relying on her own resources to support herself." "In the absence of round-the-clock resources," S.H. was incapable of caring for S.A.H.
Fleming noted that S.H. was aware of the need to separate from C.H., but "was unsure how... or when that might be feasible." S.H. hoped that C.H.'s sex offender status would one day change. Although S.H. denied any incidents of domestic violence, Fleming testified that background information received included several reports in March and April 2009 of a response by police to the couple's home.*fn5
He also opined that S.H. did not have the "ability to meet her own needs." He explained that S.H. had known for two-and-a-half years that her ability to regain custody of S.A.H. hinged on "having her own residence and establishing herself outside of her relationship with [C.H.]" but that she had failed to do so. Fleming also noted that S.H. had been consistently misleading about her living arrangements and was "unable to ascertain her own resources, financial [or] social." He further noted that the new pregnancy and a new child would cause additional stressors for S.H. Fleming concluded that S.H. lacked the ability to parent S.A.H. because her emotional difficulties would impair her ability to perform "basic cognitive functions."
With respect to C.H., Fleming found that he was suicidal, bipolar, and exercised poor judgment. Fleming detailed C.H.'s prior drug and alcohol abuse that preceded his imprisonment. Fleming opined that C.H. would be unable to parent given his status as a sex offender, his prior criminal history and mental illness, and demonstrated inability to handle stressful situations.
Fleming concluded that "neither [S.H. nor C.H.] is capable presently of parenting [S.A.H.], independently or as a couple[,]" but acknowledged that his opinion might change with respect to S.H. if she lived in a highly-structured residential facility, received adequate income, and maintained her relationship with her therapist. She would have to sever her relationship to C.H., though Fleming cautioned that he would still have concerns about S.H.'s "ability... to be truthful... with everyone who would be monitoring her" because of her dishonesty about C.H. in the past.
Fleming found that there was a bond between S.A.H. and defendants based upon their consistent attendance at supervised visitations. He described that relationship as a "positive hour or two...." S.A.H.'s bond with her foster parents was "secure, positive, healthy and mutual." The child "look[ed] to [them for] comfort, support and security." The foster parents had a foster son, five years old at the time, and Fleming noted that S.A.H. was closely bonded to her foster brother. Fleming concluded that S.A.H. would suffer harm if removed from her foster parents, and recommended termination of defendants' parental rights, followed by adoption.
Lipinski testified that S.H.'s attendance in therapy was "excellent." In her sessions, S.H. discussed her relationship with C.H. and made it clear that she would never leave S.A.H. alone with C.H.
S.H. testified on her own behalf. She and C.H. had planned for C.H. to move out of their apartment and into his brother's residence when they brought S.A.H. home from the hospital. She testified that she planned to leave C.H., but that she relied on him for financial support. S.H. claimed that DYFS did not assist her in trying to find suitable housing for S.A.H. and herself. Although she called every week "trying to get into a [housing] program," DYFS would not return her calls. She noted that she had filled out an application for assisted housing but had been on a waiting list "since [S.A.H.] was about a month old."
S.H. testified that C.H. had been arrested in March 2009 for a parole violation involving "[her] pills" not being "in a bottle when his parole officer... came into the house." C.H. was also arrested in December 2008 and in January 2009 for domestic violence. S.H. downplayed both incidents, claiming they resulted from "a screaming match," and that C.H. never "punched [her] or anything like that." At the time of trial, S.H. was pregnant again with a child fathered by C.H.
C.H. also testified on his own behalf. He supported himself through social security disability benefits. During his testimony, he initially claimed that he lived separately from S.H.; under further questioning by the judge, C.H. admitted that he resided with S.H. in the same apartment. C.H. evidenced a continued willingness to separate from S.H.
At the conclusion of the testimony, the judge rendered an oral decision from the bench and concluded that DYFS had proven by clear and convincing evidence the four-prong, best interests standard set forth in N.J.S.A. 30:4C-15.1(a). He entered an order terminating defendants' parental rights to S.A.H., and these appeals followed.
Subsequently, in September 2009, the law guardian moved to dismiss C.H.'s appeal in A-2895-08 as moot. We denied that motion.
We first consider the issues presented by both defendants in A-0414-09 and A-0415-09 in which they challenge the order terminating their parental rights. We initially note that "[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)) (quotation and citations omitted). We "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293).
However, where the focus of the dispute is... alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances, we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made. [M.M., supra, 189 N.J. at 279 (quotations and citations omitted).]
When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:
(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) [DYFS] 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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
"Under the first prong of the bestinterests [test], 'the harm shown... must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 352). Physical abuse of the child is not required; harm under the first prong can also be found if returning the child to the parent could result in psychological damage.
N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 605 (1986); see also In re Guardianship of R. G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977) (noting that "the potential for serious psychological damage to the child" is sufficient for a finding of harm)(citations omitted). Such harm may result from the parents' withdrawal of care, nurturing, and solicitude for an extended period of time, In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999), or if the parents are unable to protect and care for the child. N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 435-36 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Furthermore, "[c]courts need not wait to act[,]" with respect to termination of parental rights, "until [the] child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383 (citing A.W., supra, 103 N.J. at 616 n.14).
Both defendants contend that DYFS did not demonstrate by clear and convincing evidence that they had harmed S.A.H. or that she would be endangered by return to their custody. In essence, each argues that the judge relied solely upon C.H.'s status as a convicted sex offender to presume the likelihood of harm.
It is true that the trial judge, in explaining his decision, seemingly relied only upon C.H.'s criminal conviction and continued parole supervision. However, we conclude that there was ample evidence in the record to support a finding as to prong one for reasons other than those expressed by the judge. See D.M.H., supra, 161 N.J. at 378 ("Although the trial court's legal analysis was confusing and its findings somewhat misdirected and incomplete, the underlying evidence and the court's findings of fact may be reviewed to ascertain whether the evidence fulfills the best interests standard of N.J.S.A. 30:4C-15.1(a).").
Regarding C.H., there was ample proof, other than his conviction for sexual assault, that his presence in the same home with S.A.H. endangered the child. That evidence included his past substance and alcohol abuse, his mental illness, his suicidal thoughts and actions, and his aggressive relationship with S.H. The expert opinions in this regard were never seriously challenged.
Regarding S.H., we believe that sufficient proof as to prong one was presented on two fronts. First, while C.H. was clearly a demonstrable threat to S.A.H.'s welfare, S.H.'s relationship with him posed a similar risk of harm because she lacked any insight into the nature of that risk, and she was unwilling and/or unable to extricate herself from the relationship. We see some analogy to the facts presented in M.M.
There, the child was removed from the home within sixteen days of his birth. M.M., supra, 189 N.J. at 269. While the mother was clearly unable to parent her son, id. at 271, the father indicated a willingness to do so, and was "'functioning within the parameters of psychological normality.'" Id. at 272. Yet because the father was unable to construct a reasonable plan for caring for his son in the absence of his wife, in addressing prong one, the Court noted,
[T]he record is replete with evidence that justifies the trial court's conclusion that the father failed to provide a home in which the son was not in constant danger. Although we are mindful of the mother's limitations, it is the father who established the dangerous situation at home, who maintains those conditions, and who is unable or unwilling to substantially alter those conditions. [Id. at 281-82.]
So too in this case, it was clear that S.H. was unable to envision a life with S.A.H. that did not include C.H. The risk of harm posed by that situation is evident.
The second conclusion drawn from the evidence in this case is that S.H. posed a significant risk to S.A.H.'s welfare independent of her relationship with C.H. The expert testimony revealed that S.H. suffered from long-standing psychiatric problems, was unable to support herself in general, and relied upon a series of abusive relationships with C.H. and other men in the past for support. S.H. failed to appreciate the detrimental effects those relationships had on her own life, which was essentially nomadic and unstable in all respects.
This evidence, therefore, differentiates this case from N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596 (2007), relied upon by S.H. There, the Court reversed a termination order premised upon the mother's unwillingness to sever her relationship with her husband who had been convicted of child endangerment in the death of the couple's other child. Id. at 609, 603-04. Noting that the "case differ[ed] completely from the facts in... M.M.," the Court noted that the defendant/mother "[wa]s an accomplished person: an accountant with a responsible job, the assistant pastor of her church, and an able and loving mother who successfully raised another child." Id. at 607. In short, unlike the facts presented in G.L., there is sufficient clear and convincing evidence, independent of S.H.'s relationship with C.H., which demonstrates the likelihood of harm to S.A.H. if the parental relationship continued.*fn6
"The second prong... relates to parental unfitness[,]" which "may be demonstrated [by showing] that the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development," or that "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 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). Although the second prong focuses more on "parental unfitness[,]" prongs one and two "are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379.
The second prong is aimed at determining whether the parent can continue a parental relationship without recurrent harm to the child and whether the initial harm that endangered the child has been overcome. K.H.O., supra, 161 N.J. at 348. The focus is on whether the parent can become fit, not whether the parent is currently fit to care for the children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing A.W., supra, 103 N.J. at 607); N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005).
C.H. has not raised an independent challenge to the judge's findings regarding prong two, although he argues in his brief that he was "willing at every turn to remove the harm" that led to S.A.H.'s removal by separating from his wife. S.H. contends that she was "willing to eliminate the harm by complying with all of [DYFS's] prerequisites to reunification...." She cites her compliance with therapy and supervised visitation as evidence, and additionally argues that she could eliminate the harm within a reasonable time if given the proper services, citing our decision in F.M.
The trial judge limited his consideration of prong two to S.H.'s unwillingness to separate herself from C.H., but we conclude there is other substantial evidence that supports a finding under prong two as to both defendants.
Regarding C.H., it is clear that his continued supervision for life inhibits any ability on his part to become a true parent to S.A.H. Because there is significant other evidence in the record, we emphasize that we do not address the issue as he frames it, i.e., that his status as a convicted sex offender was the sole factor considered by DYFS in denying him and S.H. custody, and ultimately in terminating their parental rights. All of the expert testimony in this case concluded that C.H. not only presented a significant risk to S.A.H., but also that the effects of his mental illness, emotional instability, suicidal tendencies, and violent behavior were unlikely to change.
With respect to S.H., the evidence clearly shows that she had essentially remained unemployed in expectation of being added to C.H.'s Social Security disability grant as a family unit. Her psychiatric problems were severe and had existed for more than a decade. Although she had attended counseling with Lipinski, it was acknowledged that she missed over half of her counseling sessions. Her prior abusive relationships, and her lack of insight into the pernicious nature of her dependence upon C.H. and these other men demonstrated an inability to correct the problem and independently sustain herself, much less S.A.H. We view the facts presented in F.M. to be significantly different from those presented here, and, therefore, reject the argument that our holding in that case provides support for S.H.'s position.
The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted). "Whether particular services are necessary in order to comply with the diligent efforts requirement must... be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390 (citations omitted). However, the reasonableness of "DYFS's efforts... is not measured by their success." Id. at 393.
C.H.'s arguments regarding prong three relate primarily to DYFS's failure to secure separate housing for him and S.H. C.H. also argues that DYFS failed to contemplate alternatives to termination because J.B., C.H.'s aunt, came forward as a placement option. S.H. argues that DYFS failed to provide services because it did not "get her into a shelter or some type of transitional housing," and did not facilitate sustained visitation by forcing the foster parents to bring S.A.H. to Middlesex County where it was easier for her to keep her visitation appointments.
DYFS contends that prong three was proven by clear and convincing evidence, noting that its original goal of reunification with S.H. was only abandoned after her "conduct reflected that she was dependent upon [C.H.] for her own needs and... was reluctant to end that relationship." With regard to C.H., DYFS contends that he was offered services through parole, but that his participation in those programs was "not consistent."
As to C.H., we reject the argument that other placement alternatives were not explored. The record is quite clear that DYFS attempted to place S.A.H. with other family members while reunification was a possibility, and that in each instance the individuals were legitimately rejected. Furthermore, along with the other problems that arose, including his arrest in March 2009, C.H. failed to comply with the conditions of his parole, including his obligation to continue his reporting requirements. That resulted in the decision of the parole authorities to place him under house arrest and electronically monitor his activities. Clearly, the ability to provide C.H. with meaningful services was thwarted by his own conduct.
The housing issues raised by S.H. are indeed troubling. It is fair to say that even when she evidenced a willingness to separate from C.H., her ability to do so was stymied either by a lack of viable alternatives that would address her mental health issues, or by the general lack of available affordable housing. However, on the record as a whole, it cannot be fairly stated that DYFS failed to make reasonable efforts in either regard.
This is particularly so in "the circumstances of th[is] individual case[,]" id. at 390, because even if an affordable housing unit was located for S.H., the expert testimony revealed that she was essentially unable to sustain herself independently. In other words, S.H. could not live alone, much less with S.A.H., absent constant mental health monitoring.
The circumstances of this case may indeed reflect the shortcomings of the social service network that currently exists in New Jersey. Clearly, S.H. wanted to be reunited with S.A.H., a child whom she genuinely loved and hoped to care for, and it is sad that S.H. was unable to do so, in part, because of an inability to provide her with access to services that she desperately needed. However, we cannot conclude that DYFS failed in its attempt to address the myriad problems presented by this case.*fn7
"[T]he fourth prong of the best interests [test]... cannot require a showing that no harm will befall the child as a result of the severing of the biological ties." K.H.O., supra, 161 N.J. at 355. "'The question to be addressed under th[e] [fourth] prong is whether, after considering and balancing the two relationships, the child will suffer greater harm from the termination of ties with her natural parents than from permanent disruption of her relationship with her foster parents.'" In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002) (quoting K.H.O., supra, 161 N.J. at 355).
"A child's need for permanency is an important consideration under the fourth prong." M.M., supra, 189 N.J. at 281. "Inherent in the fourth factor is that a child has a paramount need for a permanent and defined parent-child relationship, as well as a deep need for a nurturing adult, commonly termed the psychological parent." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.) (quotations and citation omitted), certif. denied, 180 N.J. 456 (2004).
The trial judge concluded that "termination would provide some harm to [S.A.H.] but certainly not the enduring type of harm that would prevail if [at] this point the [c]court were to order that this child be terminated from the custody of the foster parents." Noting that S.A.H. has been with those foster parents for two-and-a-half years, the judge further found that to remove her from their care "would... cause emotional and probably physical harm in the future."
S.H. argues that a strong emotional bond existed between her and S.A.H. At oral argument before us, S.H. also contended that the improper removal of S.A.H. from her custody at birth unfairly prejudiced her ability to develop a natural parental bond with the child since she could only forge a relationship with her daughter during supervised visits. C.H. contends that a bond also existed between him and S.A.H., and, coupled with "the fact that no actual harm occurred... to [S.A.H.]... termination... [resulted in] more harm than good."
Based on the evidence adduced at trial, DYFS met its burden of proof as to prong four. Fleming testified that S.A.H. would suffer harm if removed from her foster parents care since she relied upon them for security and sustenance; he also noted the strong bond that had developed between S.A.H. and her foster brother. In short, the record reflects "that the foster parents [here] have provided a stable, loving environment for almost [S.A.H.]'s entire life." M.M., supra, 189 N.J. at 286.
While noting the relationship between S.A.H. and defendants was positive, Fleming further concluded that it was not the kind of bond that S.A.H. relied upon for support. Any harm that would result from the termination of S.A.H.'s relationship with her parents would be mitigated by the strong bond with her foster parents. While he recognized that S.H. might be able to build a strong parental bond with S.A.H. under properly monitored circumstances, he noted that this was unlikely given S.H.'s problems and inability to honestly deal with her dependent relationship with C.H. Fleming expressed doubt that S.H. could resist the power C.H. exhibited over her when it came to S.A.H.'s best interests.
After oral argument, pursuant to Rule 2:6-11(d), S.H. brought to our attention the recent decision of our colleagues in N.J. Div. of Youth and Family Servs. v. D.M., ___ N.J. Super. ___ (App. Div. 2010). In our view, that decision, relying extensively upon C.M., stands for the proposition "that termination of parental rights cannot be justified by evidence that a child may suffer serious, psychological or emotional harm by severing the bond between the child and his or her foster parents without evidence that the parent substantially caused, directly or indirectly, the harm to the child." D.M., supra, ___ N.J. Super. at ___ (slip op. at 38). Summarizing the holding in C.M., our colleagues stated: "The Court reaffirmed the principle that to terminate a parent's parental rights, DYFS bears the burden of proving by clear and convincing evidence each of the four statutory prongs of the best interests of the child standard." Ibid. (citing C.M., supra, ___ N.J. at ___ (slip op. at 30)).
We believe that D.M., supra, is quite distinguishable from the case at hand. That decision resulted from a remand we ordered after concluding that the termination order originally entered should be reversed because DYFS had failed to establish sufficient evidence under prongs one, two and four. ____ N.J. Super. at ____ (slip op. at 8-9). As already noted, in this case DYFS adduced sufficient proof to establish the first three prongs of the best interests test, and the termination order here did not rest solely upon the relative strengths of the bonds that existed between S.H. and S.A.H., and between S.A.H. and her foster parents.
At oral argument before us, S.H. also made a more nuanced argument. She contended that she was prejudiced regarding prong four because DYFS had improperly removed S.A.H. from her custody, thus limiting the amount of time in which she could have forged a bond and permitting a more significant bond to be established between S.A.H. and her foster parents. See In re Guardianship of K.L.F., 129 N.J. 32, 45-46 (1992). For reasons more fully expressed below, we reject the claim. In short, DYFS's actions in removing S.A.H. from S.H.'s custody at the time of her birth were justified, and its efforts immediately thereafter legitimately attempted to reunify the two. We do not believe the procedure employed denied S.H. the opportunity to rebut the prong four proofs that were marshaled against her.
In sum, we conclude that DYFS proved by clear and convincing evidence all four prongs of the statutory best interests test. We therefore affirm the order under review in A-0414-09 and A-0415-09.
We are left to consider the effect of our disposition upon S.H.'s appeal in A-2895-08.
In N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 255 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), we considered "whether a parent's appeal of an order that dismisses a Title 9 action brought by [DYFS] before there has been an adjudication of abuse or neglect and entry of a final order of disposition is mooted by DYFS' filing of a Title 30 action for the termination of parental rights." We determined that the "filing of a Title 30 action and the entry in that action of an order regarding custody and related matters... which supersedes any orders entered in the Title 9 action, moots the parent's appeal from the dismissal of the Title 9 action before an adjudication of abuse or neglect." Ibid.
In A.P., we first recognized "that 'termination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect.'" Id. at 259-60 (quoting N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 556 (1994)). Turning to the question of mootness, we concluded that the "dismissal of a Title 9 action without an adjudication that the parent has abused or neglected his or her child has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect." Id. at 262-63. Most importantly,
[W]e emphasize[d] that [the defendant]'s due process rights will be fully protected by the trial of the Title 30 action, which will afford her the opportunity... to contest the charges of abuse or neglect or other harm to the child caused by the parental relationship, [her] willingness and ability to address the causes of that harm, the adequacy of the remedial services DYFS provided [her], and whether the termination of [the defendant]'s parental rights... would do more harm than good. Moreover, DYFS will bear the burden of establishing the standards for the termination of parental rights by "clear-and-convincing-evidence" rather than the lesser burden of proof by a "preponderance of the evidence" that would apply in an action under Title 9. [Id. at 264.]
In this case, the Title 9 proceedings never resulted in a finding of abuse and neglect against S.H. Although the order entered on summary judgment bore the name of both defendants, DYFS acknowledged, and the court accepted, that such a finding could only be entered as to C.H. That is clear from the transcripts of the proceeding that preceded the hearing on DYFS's motion, and the hearing on the motion itself.*fn8
At oral argument before us, S.H. asserted that A.P. was wrongly decided. We disagree, and conclude that the appeal of the order terminating the Title 9 proceedings is moot.*fn9
Although we initially denied the law guardian's motion to dismiss S.H.'s appeal as moot, we do not hesitate to revisit that decision. At the time the motion was made, the termination order had recently been entered and we did not have the benefit of the entire record now presented by these appeals.
Finally, we address an issue raised by S.H. that ostensibly asserts a reason why the appeal is not moot. She contends that S.A.H. was wrongfully removed from her custody, that the Title 9 proceedings perpetuated that wrong, and that her defense in the Title 30 proceedings was ultimately prejudiced because she was denied the ability to forge a bond with her daughter.
Initially, we note that S.A.H.'s removal from S.H.'s custody was not based solely on the fact that C.H. had a prior sexual assault conviction. See M.M., supra, 189 N.J. at 289-90 ("The crucial inquiries are whether the parent's association with others causes harm to the child and whether the parent is unable or unwilling to provide a safe and stable home. That the threat to the child is created by the presence of another parent is irrelevant to the determination of whether the child is at risk."). Even if the initial removal was not justified, that would not change our conclusion that the appeal is moot. DYFS could not, and did not, prove grounds for termination by relying upon an unjustified removal that it subsequently failed to take reasonable steps to rectify. If that was the basis for the termination of S.H.'s parental rights, reversal would be warranted.
Moreover, in the numerous proceedings that took place prior to the filing of the Title 30 complaint, S.H. frequently indicated her desire to separate herself from C.H., and requested DYFS's assistance in doing so. However, she never sought a fact-finding hearing or the return of S.A.H. to her custody in the circumstances as they then existed.
In the first status conference after the initial grant of custody to DYFS, S.H.'s counsel asked that S.A.H. be "returned to her" if her husband left the home. C.H. never did. Thereafter, when the judge announced her intention to consider DYFS's summary judgment motion regarding a finding of abuse and neglect against C.H., S.H. did not object. As noted, neither she nor counsel appeared at the argument on that motion. In the proceedings that took place prior to the permanency trial, S.H. never objected to DYFS exercising its continued custody over S.A.H.*fn10
Pursuant to N.J.S.A. 9:6-8.32,
Upon the application of the parent... of a child temporarily removed under this act, the court shall hold a hearing, whereby the safety of the child shall be of paramount concern, to determine whether the child should be returned; a. if there has not been a hearing on the removal of the child at which the parent or guardian was present or had an adequate opportunity to be present; or b. upon good cause shown. Except for good cause shown, such hearing shall be held within three court days of the application. Upon such hearing, the court shall grant the application, unless it finds that such return presents an imminent risk to the child's life, safety or health.
See N.J. Div. of Youth and Family Servs. v. G.M., 198 N.J. 382, 398 (2009) (discussing statutory scheme and the available opportunity for a parent to seek the return of her child). S.H. never sought relief under this section of Title 9.
The appeal in A-2895-08 is dismissed as moot. The order under review in A-0414-09 and A-0415-09 is affirmed.