January 12, 2011
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.R. AND O.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-159-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010 - Decided
Before Judges Fisher, Sapp-Peterson and Simonelli.
R.T. appeals from the April 1, 2010 Family Part judge's order terminating her parental rights to two of her five children: N.R., born June 7, 2005; and O.M., born May 11, 2006. We affirm.
In addition to N.R. and O.M., R.T. is the biological mother of G.T., born February 26, 1997; M.T., born March 24, 1999; and E.T., born January 12, 2001. Beginning in 2004 and continuing until 2008, when the Division of Youth and Family Services (Division) removed all of the children from her custody through an emergency Dodd Act (Dodd)*fn1 removal, the Division responded to approximately twelve referrals involving R.T. and her children. The referrals alleged physical abuse, prostitution, substance abuse, and lack of supervision. Many of the referrals were made by M.T., Sr., R.T.'s former husband. Most of the referrals were deemed "unfounded" but a number of referrals alleging that she was intoxicated were substantiated. On May 22, 2007, the Division assigned to the family home health aides, who made daily visits to R.T.'s home to observe her interactions with the children. Throughout this same time period, R.T. was subjected to urine screens for alcohol and controlled dangerous substances. She tested positive for alcohol on June 22, 2007, but testing conducted three days later reported negative results for alcohol and drugs. On October 5, 2007, R.T. signed a case plan agreeing to submit to a substance abuse evaluation. She failed to attend the evaluation as scheduled and refused to undergo a urine screening that was requested on October 27.
On November 30, 2007, the Division filed a complaint for care and supervision of the five children, and on that same day, the trial court entered an order to show cause (OTSC) compelling R.T. to (1) send her children to school, (2) comply with twenty-four-hour "homemaker service, Family Preservation Services or a similar service during the weekends," (3) attend a psychological evaluation, (4) attend a substance abuse evaluation, (5) comply with the parenting evaluation and Children's House recommendations, and (6) obtain counsel for the return date of January 9, 2008. It was further ordered that the children be "placed in the care and supervision of the Division, pursuant to N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4c-12."
On December 4, the home health aide reported the presence of "rats, roaches  everywhere." The next day R.T. signed another case plan agreeing to comply with the requested substance abuse evaluation. On December 21, the home health aide reported that R.T. came home intoxicated again and that the children had not attended school for more than a week.
On January 9, the return date of the OTSC, the court signed an order requiring R.T. to (1) attend outpatient substance abuse treatment, (2) comply with recommendations from Children's House, (3) complete forms for the Institute for Child Development, (4) provide the Division with a completed employment verification form, and (5) comply with recommendations made as a result of the psychological and parenting evaluations. R.T. missed the substance abuse evaluation scheduled for January 29, 2008. A subsequent evaluation scheduled for February 14, was postponed because R.T. was missing documents. This evaluation, scheduled at the North Hudson Community Action Corporation, was not rescheduled until October 6, 2008. However, R.T. missed another substance abuse evaluation the Division had scheduled for February 17, at a different location.
On February 8, 2008, the Division effectuated an emergency Dodd removal of the children after it was reported that R.T. left the younger children home with the home health aide while taking the older children to school. Under the terms of a prior court order, R.T. was not permitted to use the home health aides as babysitters. On February 13, the court entered an OTSC (1) transferring legal custody of the five children to the Division, (2) continuing the Division's physical custody of the children, (3) requiring defendant to undergo a psychological evaluation, and (4) scheduling visitation between defendant and the children for two hours every week. In addition, the court directed that the Division pursue placement of the three older children, G.T., M.T., and E.T., with their biological father, M.T., Sr., in Maryland, and pursue placement of N.R. and O.M. with their biological grandmother. Following a hearing on the OTSC conducted on March 19, 2008, the court continued the terms of its February 13 order.
Following the removal of the children from her custody, R.T. sporadically complied with services offered by the Division. Those services included numerous referrals for substance abuse evaluations, treatment, and screening. Her visits with the children were also sporadic during the time between their removal and the trial.
On June 11, 2008, R.T. waived her right to a fact-finding hearing and admitted that by leaving her children alone with the home health aide, she put her children at risk. The court ordered R.T. to attend psychiatric and substance abuse evaluations and parenting skills training. Additionally, the court ordered the Division to place G.T., M.T., and E.T. with their biological father, M.T., Sr., who was living in Maryland at the time. The court continued the Division's legal and physical custody of the two younger children. The court entered a permanency order on January 14, 2009, approving the Division's plan to terminate R.T.'s parental rights, followed by N.R.'s adoption by her current foster parent and the reunification of O.M. with his biological father, J.O.M., who was living in El Salvador. The court also transferred legal custody of the three older children to M.T., Sr.
The Division filed its guardianship complaint on March 11, 2009, and the court conducted a trial on the complaint on March 25, 26, and April 1, 2010. The Division called two witnesses: Carolyn O'Neal, the caseworker associated with the file; and Dr. Frank Dyer, Ph.D., the psychologist who conducted the bonding evaluations between R.T. and N.R., N.R. and the foster mother, R.T. and O.M., and O.M. and the foster mother. The Law Guardian appointed on behalf of N.R. called Dr. Antonio Burr, Ph.D., a psychologist, who conducted a psychological evaluation of defendant and several bonding evaluations. Defendant was the only witness who testified as part of her defense.
At the conclusion of the hearing, the court rendered an oral decision from the bench, finding that the Division had satisfied its burden of demonstrating, by clear and convincing evidence, that termination of R.T.'s parental rights to N.R. and O.M. was in the best interest of the children. The court entered an order terminating R.T's parental rights to N.R. and O.M. and granting guardianship of the two children to the Division. The present appeal followed.
On appeal, R.T. raises the following points for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING TERMINATION OF PARENTAL RIGHTS BECAUSE THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.T. PUT N.R. AND O.M. AT RISK, THEREBY FAILING TO PROVE PRONG ONE.
THE DIVISION FAILED TO MEET ITS BURDEN AS TO PRONG TWO BECAUSE THERE WAS INSUFFICIENT PROOF THAT N.R. AND O.M. WOULD SUFFER IRREP[A]RABLE PSYCHOLOGICAL HARM IF SEPARATED FROM THEIR FOSTER MOTHER. . . . .*fn2
THE DIVISION FAILED TO PROVE THAT TERMINA[TI]ON OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD, THUS FAILING TO PROVE PRONG FOUR BY CLEAR AND CONVINCING EVIDENCE.
A. HARM TO THE CHILDREN IS LIKELY AS A RESULT OF THE TERMINATION OF PARENTAL RIGHTS.
B. THE TRIAL COURT APPLIED AN IMPERMISSIBLE BETTER INTEREST ANALYSIS
INSTEAD OF THE STATUTORILY REQUIRED BEST INTEREST TEST UNDER PRONG FOUR.
R.T. WAS DENIED EQUAL PROTECTION OF THE LAW BECAUSE THE BIOLOGICAL FATHERS WERE TREATED WITH INDULGENCE AND WERE ACCOMMODATED.
We have considered the points raised on appeal in light of the record and the applicable legal principles and find them to be unpersuasive. We are satisfied that the evidence clearly and convincingly establishes that the best interests of N.R. and O.M., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1(a), warrant termination of R.T's parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We are equally persuaded that there is substantial credible evidence in the record to support the trial judge's ruling terminating parental rights.
The balance between parental rights and the State's protective interest over the welfare of children is achieved through application of the statutory "best interests of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1. The statute provides:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]
The four statutory criteria "are not discrete and separate[.]" K.H.O., supra, 161 N.J. at 348. Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are "fact sensitive." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (citations and internal quotation marks omitted). For the trial judge, who sits as the fact-finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross-examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether the Division, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).
On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
R.T. does not challenge the court's findings as to the third prong, namely, that the Division made reasonable efforts to provide services to assist R.T. in addressing the problems that led to the children's removal and explored reasonable alternatives to terminating her parental rights. Therefore, we limit our discussion to the court's factual findings and legal conclusions related to the first, second and fourth prongs of the "best interest" test for determining whether R.T.'s parental rights should have been terminated. When analyzed against the standard set forth above, there is no merit to defendant's contentions that the Division failed to prove the first, second and fourth statutory factors by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).
In finding that the Division established the first prong, the trial court relied heavily upon Dr. Dyer's and Dr. Burr's evaluations, both of whom found that R.T.'s cognitive deficits, coupled with her substance abuse, caused harm to the children. "'Harm, in this context, involves the endangerment of the child[ren]'s health and development resulting from the parental relationship.'" N.J. Div. of Youth & Family Servs. v. P.P. and S.P., 180 N.J. 494, 506 (2004) (quoting K.H.O., supra, 161 N.J. at 348). The "'harm shown . . . must be one that threatens the child[ren]'s health and will likely have continuing deleterious effects on the child[ren].'" N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 435 (App. Div. 2009) (quoting K.H.O., supra, 161 N.J. at 352). This first prong "focuses on the effect of harms arising from the parent-child relationship over time[.]" Ibid. (quoting K.H.O., supra, 161 N.J. at 348 (internal quotation marks omitted)).
Here, there is clear and convincing evidence that R.T. harmed N.R. and O.M. and will continue to do so in the future. First, R.T. has substance abuse issues. On May 25, 2007, while N.R. and O.M. were still living with her, R.T. tested positive for alcohol. In addition, on December 7, 2007, and on December 21, 2007, the home health aide reported that R.T. "came [home] drunk." After N.R. and O.M. were removed from R.T.'s home, she continued to test positive for cocaine on a number of occasions. Despite these positive screening results, R.T. remained in denial relative to her substance abuse. She failed to attend her appointments with the North Hudson Community Action Corporation. R.T.'s continued denial and failure to undergo meaningful and sustained treatment will endanger N.R. and O.M.'s safety and health if they are returned to her.
Second, N.R. and O.M. have been diagnosed with mild delays in their adaptive behavior. Dr. Dyer opined that R.T.'s "low intellectual functioning and lack of basic literacy both serve as significant handicaps with respect to the kinds of judgments, decision-making, and overall supervision" that parenting young children requires. In addition, Dr. Dyer expressed the opinion that R.T.'s depression would prevent her "from exercising the degree of vigilance and attention required for appropriate parenting, as well as prevent her from providing an adequate degree of emotional and social stimulation to a young child." Dr. Burr testified that because of R.T.'s cognitive deficits, she is "unable to concentrate on the needs of the children, develop strategies, and deal with the children." Dr. Dyer predicted "an extremely low likelihood that [R.T.'s situation] would change significantly within the foreseeable future[,]" and opined that it is likely that R.T. will continue to endanger the children if they are in her care.
There is substantial credible evidence to support the court's finding that the second prong of the "best interest" test was met, as evidenced by R.T's continued denial that she has a substance abuse problem, compounded by her failure to consistently comply with recommendations to assess and treat her substance abuse. Additionally, she was diagnosed as suffering from depression but did not seek treatment. The court credited Dr. Dyer's testimony that delaying permanency was not in the children's best interest because they needed a "parent figure whom they can invest with ultimate parental authority and responsibility over them." Further, based upon Dr. Dyer's evaluation of the children, he found that both were emotionally more responsive to their respective foster mothers than to R.T. and that there would be significant harm to both children if separated from their foster mothers.
In establishing the fourth prong of the "best interest" test by clear and convincing evidence, the Division was required to "offer testimony of a well-qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation of the child[ren]'s relationship" with R.T. and their respective foster parents. A.R., supra, 405 N.J. Super. at 442 (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992) (internal quotation marks omitted)). Dr. Dyer testified that although N.R. and O.M. have a "positive, emotional connection" to R.T., they do not look to her as their "psychological parent" and are not attached to her. He indicated that the children were "happy, enthusiastic, affectionate, [and] emotionally responsive to the[ir] foster mother[s] to a degree that was qualitatively different from their emotional reactions to" R.T. Dr. Dyer noted that the children would not have a significant problem if their relationship with R.T. was severed, but "there would be significant harm if they were removed" from their foster mothers' care.
Dr. Burr corroborated Dr. Dyer's testimony. He testified that N.R.'s best interest "in terms of development, in terms of her emotional needs, in terms of her physical needs, [and] in terms of her attachment needs" would be best served by placing her with her current foster mother. In addition, Dr. Burr observed that N.R.'s bond to her foster mother "shows a kind of enthusiasm that is certainly not exhibited in her relationship with her mother." Dr. Burr acknowledged that N.R. had an attachment to R.T. and would experience loss if her relationship with R.T. was severed, but testified that this bond "is now diminished" because of the separation and the fact that N.R. is "no longer exclusively focused on [R.T.] for the nurturing and the satisfaction of her needs." Dr. Burr expressed the opinion that the bond that currently exists between N.R. and her foster mother would mitigate the loss N.R. would experience from terminating R.T.'s parental rights.
To summarize, the trial court's findings and legal conclusions were supported by substantial credible evidence in the record and we discern no basis to disturb those findings. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010) (LaVecchia, J., dissenting).
R.T., for first time in this appeal, raises her contention that she was denied equal protection because the children's biological fathers, M.T., Sr., and J.O.M., were treated with indulgence and accommodated by the court and the Division. Ordinarily, we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Defendant raises a constitutional issue, and in the interest of justice, we consider this contention, which we conclude is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E).
The equal protection guarantees of the Fourteenth Amendment of the United States Constitution and the New Jersey Constitution, N.J. Const. art. I, § 1, provide that similarly situated persons shall be treated alike. State v. Fernandez, 209 N.J. Super. 37, 47 (App. Div. 1986), certif. denied, 109 N.J. 481 (1987). Beyond their status as parents to the three older children, M.T., Sr. and R.T. were not similarly situated persons. The order under appeal relates to the termination of R.T.'s parental rights to N.R. and O.M. It is undisputed that M.T., Sr. is not the biological father of either child. Therefore, the Division was under no obligation to conduct psychological evaluations, bonding evaluations, or to require parenting skills training for M.T., Sr. in connection with N.R. and O.M. The record reveals, however, that prior to transferring physical custody of the three older children to M.T., Sr. in July 2008, the Division initiated an interstate referral to Maryland, where M.T., Sr. was residing at the time. In its March 19, 2008 Multipurpose Order, the court ordered the Division to "followup with [the] [S]tate of Maryland at two[-] week intervals and inform counsel and [the] [c]court of [the] status as to interstate." When the parties appeared before the court for a compliance review hearing on June 11, 2008, the interstate study apparently had not been completed. The court ordered that the interstate study be completed by July 11, but if not, the three older children were to be placed with M.T., Sr. on "July 11, 2008 regardless of whether [the] interstate study [was] completed[.]" The voluminous appendix does not contain the results of the interstate study. Although the record contains allegations that M.T., Sr. had been abusive towards R.T. while they were together and that he did not cooperate in arranging visitation between R.T. and the three older children, there were no allegations that he failed to provide a safe and stable environment for the three older children. Moreover, the behavioral problems exhibited by G.T., once M.T., Sr. assumed physical custody of the three older children, pre-existed the transfer of physical custody to him. Nor does the record contain any referrals to the Division or Maryland authorities regarding the care and supervision of the children by M.T., Sr. At the January 14, 2009 compliance review hearing when legal custody of the three older children was transferred to M.T., Sr., no objection to the transfer was made on behalf of R.T., and that order is not under appeal. As such, R.T.'s claim of denial of equal protection is without any support in the record.