On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-76-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011 - Decided Before Judges Axelrad, Lihotz and J. N. Harris.
Defendant C.L. is the mother of the three children, T.B., J.B. and Jo.B., who are the subject of this guardianship action. C.L. appeals from a March 23, 2010 judgment terminating her parental rights and awarding guardianship of the three children to the Division of Youth and Family Services (the Division) for the purpose of effectuating their adoption. The judgment followed the second trial on the Division's complaint. Following entry of the initial judgment of guardianship, dated February 29, 2008, C.L. appealed and we reversed and remanded "for more detailed findings of fact and for further proofs, if necessary." N.J. Div. of Youth & Family Servs. v. C.L., No. A-3753-07 (App. Div. May 6, 2009), slip op. at 16. The matter was transferred to a different Family Part judge who obtained additional psychological and bonding evaluations and held an evidentiary hearing. The court concluded the Division had satisfied the statutory factors and again ordered that C.L.'s parental rights be terminated. On appeal, C.L. argues:
THE DECISION TO TERMINATE C.L.'S PARENTAL RIGHTS WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE.
A. PRONGS 1 & 2: [THE DIVISION] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.L.'S RELATIONSHIP WITH [THE CHILDREN] HAS CAUSED OR WILL CAUSE ENDURING HARM.
B. PRONG 3: [THE DIVISION] DID NOT PROVIDE "REASONABLE EFFORTS" TO REUNIFY C.L. WITH [THE CHILDREN].
C. THE TRIAL COURT MISINTERPRETED THE APPLICABLE STANDARD GOVERNING KINSHIP LEGAL GUARDIANSHIP.
D. PRONG 4: TERMINATION OF C.L.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD TO [THE CHILDREN].
We have considered the arguments presented in light of the record and applicable law. We affirm.
The facts leading up to the children's foster care placement are not disputed. The Division began its involvement with this family following T.B.'s birth in July 2003. Nineteen-year-old C.L. and the one-month-old infant were living in the Birth Haven Shelter. C.L. requested assistance to find permanent housing.
At the Division's request, C.L. underwent a psychological evaluation. The therapist questioned C.L.'s ability to physically and emotionally care for T.B., and recommended the Division continue its supervision of the family. The Division maintained an open file designating the family in need of services until January 16, 2004. There was no finding of abuse or neglect.
On September 16, 2005, a second referral was made when Hackensack University Medical Center (HUMC) contacted the Division the day following J.B.'s birth. The Division was advised C.L. had not sought prenatal care and had morphine in her system. Further, J.B. was delivered eight weeks early and tested positive for morphine. Following its investigation, the Division determined C.L. had been given morphine for a migraine during an emergency room visit the day before. Accordingly, it concluded the allegations of neglect were unfounded and closed its file on October 7, 2005.
Two days later, police responded to a domestic violence incident involving C.L. and the children's father, Ja.B. During the disagreement Ja.B. choked C.L. and then left their apartment. C.L. was granted a domestic violence temporary restraining order (TRO), barring Ja.B. from the home and from contacting C.L. or the children. The Division took no further action.
Two days after this incident, HUMC contacted the Division. C.L. had called a crisis line and reported suicidal and homicidal ideations for which she was hospitalized. The Division could not locate Ja.B. or another family member to care for the children, so it assumed custody, care and supervision and placed the children in foster care.
C.L. remained hospitalized for one week, suffering from post-partum depression. In working toward reunification, the Division requested C.L. undergo a psychological evaluation. The evaluator, Frederica Brown, Ph.D., concluded C.L. presented "several risk factors for potential abuse" of the children as she was overwhelmed by the responsibility of caring for the two young boys and periodically would erupt into violent behavior. C.L. had stated she had been angry with Ja.B. because he would not help her with the children, and she wanted to kill the baby. C.L. also admitted she initiated the violent altercation with Ja.B., but expressed no regret or remorse. Based upon Dr. Brown's recommendation, the children remained in foster care and C.L. was granted supervised visitation and commenced therapy and parenting classes.
The Division learned of other domestic violence incidents and expressed its concern regarding the turbulent relationship between the C.L. and Ja.B. C.L. acknowledged her interaction with Ja.B. provoked violence, but failed to comprehend how that adversely affected the children. She understood the TRO barred Ja.B. from the residence and agreed to participate in the Alternatives to Domestic Violence program (ADV). The Division returned the children to C.L.'s custody on May 25, 2006.
As soon as the children were returned, C.L. stopped attending counseling. Two months later, she called the children's prior foster mother to ask for assistance with the children because she was overwhelmed. When the Division investigated, it learned C.L. and the two children were again homeless. The family had been evicted from their shelter-residence after C.L. aided another to steal a resident's jewelry. The Division was informed C.L. returned to live with Ja.B., removed the children on July 19, 2006, and returned them to foster care.
Jo.B. was born on August 7, 2006. The infant was full term and of sufficient weight, but suffered from cardiac problems. C.L. requested the child be placed in foster care because she had no place to live.
The Division dismissed the protective services litigation and filed a guardianship complaint on November 9, 2006. The court continued the children's placement with their respective foster parents. The Division arranged for supervised visitation for C.L. and Ja.B and provided the parents with bus passes to attend the visits.
T.B. and J.B. moved through three different foster placements and a failed reunification with C.L. before being placed with their current foster mother in August and September 2007, respectively. They remain in her care and she has expressed a desire to adopt them. Jo.B. remains in his first placement and the foster parents have committed to adopt him.
On September 3, 2007, in the course of the guardianship proceeding, C.L. gave birth to her fourth child, Jr.B. C.L. had arranged to place the baby through a private adoption agency, which had been paying her rent. When she reconsidered and declined to complete adoption proceedings, C.L. was unable to pay her rent and was evicted.
The Division advised C.L. it intended to seek a hospital hold to prevent the baby from leaving the hospital with her. At C.L.'s request, the Division contacted Ms. R., her great aunt who resided in North Carolina, inquiring whether she would provide care for the children. Ms. R. agreed to accept care of Jr.B. The child continues to live with Ms. R. and is not involved in this litigation.
C.L.'s visits with T.B., J.B. and Jo.B. became more sporadic. She missed several visits and arrived late for others. The Division was notified that C.L. was discharged from therapy for nonattendance. C.L. completely stopped attending supervised visits with the three children on October 4, 2007 and moved to North Carolina on December 25, 2007.
Following her move, C.L. did not contact the Division and ignored its letters. The Division's caseworker traveled to North Carolina to deliver Jr.B. to her great aunt and visit C.L. She learned C.L. was living with Ja.B. and working evenings at a gentlemen's club. The Division offered to pay C.L.'s transportation costs to New Jersey so she could visit the three older children once each month. C.L. did not respond. Consequently, the next time she saw the three children was during a bonding evaluation.
At trial, the Division presented the testimony of its caseworker Priscilla Valentin, who related the Division's involvement with the family, and its two experts, Michael J. Fiore, Ph.D., who discussed his psychological evaluation assessing C.L.'s parenting abilities and Heather Diamond, LCSW, who testified regarding the results of her bonding evaluations. Additionally, C.L. testified on her own behalf.
In a brief written opinion, the trial court entered a judgment terminating C.L.'s parental rights and awarding guardianship of T.B., J.B. and Jo.B. to the Division. On appeal, we reversed and remanded for "more detailed findings of fact and for further proofs." N.J. Div. of Youth & Family Servs. v. C.L., supra, slip op. at 16.
The matter was assigned to a different Family Part judge for trial, which commenced on January 11, 2010. Without objection, the State presented all evidence offered in the first trial, including the trial transcripts. Additionally, the Division offered the expert testimony of Robert J. Miller, Ph.D., a licensed clinical psychologist who had performed a psychological evaluation of C.L. in August 2009, and updated bonding evaluations. Dr. Miller also discussed the results of a 2008 evaluation of T.B., undertaken to address the child's emotional and behavioral concerns.
After gathering the data from a clinical interview and psychological testing, Dr. Miller concluded C.L. suffered from an Axis II histrionic personality disorder and emotional instability. She also displayed several parenting deficits. He opined the ...