February 9, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.C., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF A.C.-T.*FN1 , A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-17-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2011
Before Judges Axelrad, R. B. Coleman and Lihotz.
Defendant S.C., the biological mother of A.C., who is the concern of this proceeding, appeals from a May 24, 2010 order terminating her parental rights and awarding a judgment of guardianship to the Division of Youth and Family Services (the Division) for the purpose of effectuating A.C.'s adoption. We note the parental rights of M.T., A.C.'s biological father, were terminated following the entry of a default judgment, from which he has not appealed.
On appeal, S.C. raises the following issues:
POINT I THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION'S EVIDENCE WAS NOT COMPELLING ENOUGH TO JUSTIFY TERMINATION OF PARENTAL RIGHTS UNDER THE CRITERIA OF THE "BEST INTERESTS" TEST.
(A) [S.C.] DID NOT "HARM" A.C. UNDER THE FIRST PRONG AND THE DIVISION'S DECISION TO REMOVE A.C. FROM [S.C.'S] CUSTODY WAS UNRELATED TO BEST INTERESTS CRITERIA.
(B) THE TYPE OF PARENTAL INADEQUACIES IDENTIFIED BY THE DIVISION WERE ATTRIBUTABLE TO PARENTAL "POVERTY" AND DID NOT CONSTITUTE CLEAR AND CONVINCING EVIDENCE OF PARENTAL "UNFITNESS" UNDER N.J.S.A. 30:4C-15.1 CRITERIA.
(C) THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FINDING THAT THE DIVISION PROVED THE THIRD PRONG OF THE BEST INTERESTS TEST BY CLEAR AND CONVINCING EVIDENCE.
(1) THE DIVISION FAILED TO MAKE "REASONABLE EFFORTS" UNDER THE THIRD PRONG BECAUSE IT WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.
(2) THE DIVISION'S EFFORT TO PLACE A.C. WITH HER MATERNAL GRANDMOTHER AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS FELL FAR SHORT OF ITS PARENS PATRIAE RESPONSIBILITIES.
(D) TERMINATION OF PARENTAL RIGHTS WOULD DO MORE HARM THAN GOOD BECAUSE THERE WERE NO COMPELLING REASONS TO TERMINATE [S.C.'S] PARENTAL RIGHTS.
POINT II THE TRIAL COURT MISAPPLIED ITS DISCRETION IN RELYING SOLELY UPON DR. SINGER'S BONDING EVALUATION IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD BECAUSE DR. SINGER'S FINDINGS WERE NOT BASED ON "REASONABLE PSYCHOLOGICAL CERTAINTY OR PROBABILITY" (NOT RAISED BELOW).
Following our consideration of these arguments in light of the record and applicable law, we affirm.
The facts are taken from the trial testimony and supporting record. A.C. is now two years old. S.C. and M.T. never married and were not residing together when A.C. was born. In addition to A.C., S.C. is the mother of four other children who are not involved in this action: D.Y., born on June 28, 1988; D.C., born on July 21, 1989; M.C., born on July 15, 1995; and T.P., born on February 22, 2000.
The Division's involvement with S.C. began on July 24, 1989, when D.C. tested positive for methadone at birth. We need not recite the entire history of S.C.'s three-decade-long attempt to assume parental responsibility for her children. At the time of trial in this matter, D.Y. and D.C. were emancipated and T.P. was in the legal and physical custody of her father. Despite the Division's intervention and offer of services, M.C. tested positive for methadone at birth, and S.C.'s parental rights were terminated on May 14, 2002. Thereafter, the child was adopted. S.C. continued her two-decade addiction to heroin, cocaine and other drugs. Additionally, she had been arrested from criminal offenses and was involved in domestic violence incidents with her mother and the father of her children. Her physical ailments are chronic and her treatment sporadic.
S.C. was oblivious to her fifth pregnancy until almost the seventh month. She continued to abuse Xanex, cocaine, and methadone and did not receive prenatal care for the first six and one-half months. On August 5, 2008, M.T. notified the Division that S.C. had been released from jail on drug possession and distribution charges and was eight months pregnant. M.T. called the Division a second time voicing a concern that S.C. used drugs daily, even though she was pregnant. M.T. stated that although he had not witnessed S.C. "shoot up," she told him she was going to and he saw new track marks on her neck. M.T. further disclosed S.C. possessed crack pipes and was selling cocaine. M.T. also explained the prior day, she could not walk and he helped her into her apartment after he found her stretched out on the floor.
On August 12, 2008, A.C. was prematurely born at home and transported to the hospital. Hospital staff contacted the Division because A.C. tested positive for cocaine, benzodiazepine, opiates and methadone. S.C. also acknowledged she had not obtained pre-natal care.
S.C. was discharged, however, A.C. remained hospitalized because she was being treated for withdrawal, exposure to H.I.V. and hepatitis C, and vision impairments. On August 20, 2008, the Division filed a verified complaint seeking protective custody, care, and supervision of A.C. Following a hearing, A.C. was placed in the custody of the Division. A.C. was finally discharged on September 24, 2008 and admitted to St. Clare's Health System (St. Clare's), a facility for medically fragile infants. From St. Clare's, A.C. was placed in a special needs foster home on March 5, 2009, where she remained throughout the litigation.
The Division referred S.C. for drug and alcohol rehabilitation services and a psychological evaluation. S.C. was not available for the rehabilitation appointments. The Division transported her for the psychological evaluation, however she was unable to participate in the evaluation because she was under the influence of illicit substances.
S.C. identified her sister and her mother, M.H.C. as possible family placements for A.C. S.C.'s sister expressed an inability to care for A.C. The Division ruled out S.C.'s mother, M.H.C., who lived in North Carolina, because her home state declined to process the interstate transfer based on concerns for M.H.C.'s ability to care for the child. The Division sent M.H.C. a letter identifying these issues found rendering her unsuitable as A.C.'s care provider: M.H.C. expressed statements of disdain for the foster parent guidelines to a North Carolina social worker; she failed to submit a completed application for processing to North Carolina; and several unidentified individuals reported M.H.C. displayed behavior that was "out of the ordinary" -- that is, M.H.C. displayed a demeanor of "being really happy" at times and "really mad to the point of rage" at other times. In August 2009, M.H.C. was advised she had the right to challenge the determination, but did not.
On July 10, 2009, the Division filed a complaint for guardianship of A.C. pursuant to N.J.S.A. 30:4C-15 through -20, seeking to terminate the parental rights of defendant and M.T. During trial, Division caseworker Emerald Ervy explained the Division's involvement with A.C. and S.C.'s failure to engage drug treatment. Ervy stated that even though the Division was granted an exception to the statutory obligation to make reasonable efforts to reunify A.C. with S.C., it still offered limited services, which S.C. rejected. Ervy visited A.C. biweekly. She revealed that since A.C.'s birth, S.C. had visited twice and M.T. had never seen the child.
Ervy testified the foster home is a good fit for A.C. She interacts well with the foster parents' children and the family had "a very loving relationship[.]" Ervy related the foster parents have expressed their intention to pursue adoption. Ervy also testified the foster parents are well equipped to care for A.C.'s special needs and the child receives "a very high level of care" from her foster parents, who "are always on top of her medical appointments and . . . therapy[.]" A.C. is developmentally delayed and regularly attends occupational and special education therapies. Finally, Ervy stated the Division's plan for the child is to complete a foster parent adoption once termination of parental rights is granted.
The Division introduced fifty-eight documents into evidence and, without objection, the report of the court-ordered bonding evaluation between A.C. and her foster parents prepared by Dr. Mark Singer was also marked into evidence. Dr. Singer's report stated A.C. was well bonded with her foster parents and viewed them as her psychological parents. Based on his evaluation, Dr. Singer concluded the termination of the relationship between A.C. and her foster parents would be detrimental to the child.
S.C. testified on her own behalf, stating she was willing and able to care for A.C. as she lived in a "large studio apartment" in a senior citizen complex and received $705 per month in Supplemental Security Income. She explained her sister, her grown sons, her mother and her home health-care aid would all be available to assist her in caring for A.C. In addressing her health, S.C. testified she suffers from epilepsy, asthma, the H.I.V. virus, chronic arthritis and hepatitis C, for which she receives treatment. She denied she uses illicit drugs and repudiated the hospital's findings that A.C. was exposed to drugs at birth. S.C. further maintained her medication causes drowsiness, which may have been mistaken for being under the influence. She stated she had recently suffered "a mild stroke" and was in a coma for two months.
M.H.C. testified by telephone. She affirmed her desire to care for A.C., which she first voiced in October 2008. She attended an orientation in Robinson County, North Carolina and was "verbally promised" a license to care for A.C. as a foster parent, but the county ran out of funding and she was never certified. The county representative told her to "move back to New Jersey," as it would be simpler to get licensed. M.H.C. denied she had made derogatory comments regarding the state foster program, asserted she had completed and returned her application, and rejected the reports of severe moods swings as false. She stated her home, which was more than adequate to accommodate A.C., was never inspected by Robinson County Social Services despite a written request made by the Division.
On May 24, 2010, the trial judge rendered an oral opinion ordering the termination of S.C.'s and M.T.'s parental rights. The trial court found by clear and convincing evidence that the Division met all four prongs of the best interest of the child test, N.J.S.A. 30:4C-15.1, warranting entry of an order terminating parental rights of S.C. and awarding the Division guardianship of A.C. Specifically, the court concluded the child was harmed by S.C.'s long history of substance abuse, which directly caused A.C. to be drug addicted and HIV exposed. At the time of trial, S.C. was unable to care for a child and needed assistance to care for herself. The court described her as a very ill woman who has a longstanding history of substance abuse. Her speech is profoundly slurred. She has difficulty walking. Often . . . presents in a confused manner. She requires the assistance of a medical transport van . . . . She manifests difficulty in communicating and in navigating systems. When she is seated, she will often nod, perhaps as a result of her illness, prescribed medications, non-prescribed substances or some mental impairment.
S.C. had not completed the varied services provided and was unwilling to end her addiction, despite the Division's twenty-year involvement. The court had relieved the Division of its obligation to provide reasonable reunification efforts because of S.C.'s prior history, including that her parental rights to another child, M.C., had been terminated. No suitable relative placements or alternatives to termination were available. Finally, the trial court identified the harm to A.C. if removed from her foster parents, the only parents she has known; further, delay of permanent placement will add to the harm experienced by the child. This appeal ensued.
As a threshold matter, the scope of appellate review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "The factual findings, which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the  court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about witnesses" who testify). The trial court's "'feel of the case'  can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104. We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "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." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).
Additionally, our review is guided by the following legal principles. The right of parents to enjoy a relationship with their children is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. See also J.N.H., supra, 172 N.J. at 471. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.
"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). Nevertheless, some parents "may at times be acting against the interests of their children[.]" Ibid. When "experience and reality  rebut[s] what the law accepts as a starting point," Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119, the State's parens patriae obligations are triggered. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" In re Guardianship of P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, a child's need for permanency and stability is a critical factor in guardianship cases.
When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parents have not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). This responsibility, in some cases, requires that the parent-child relationship must be severed. A.W., supra, 103 N.J. at 599.
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, was codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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).]
These four requirements "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact-sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid. With each of these principles in mind, we turn to our review of the arguments advanced by S.C.
S.C. first challenges the sufficiency of the evidence, asserting the Division has failed to satisfy its statutory burden by clear and convincing evidence. Specifically she maintains she never harmed A.C., her parental inadequacies were a result of poverty not unfitness, and her mother was improperly rejected as an alternate caregiver. She also presents an argument for the first time, asserting the court misapplied its discretion in "relying solely upon Dr. Singer's bonding evaluation," which was not based on reasonable psychological certainty. We reject these arguments as meritless. R. 2:11-3(e)(1)(E). We add these brief comments.
Prongs one and two, which are related, were evinced by S.C.'s relentless drug use and disregard for prenatal care during her pregnancy. This conduct directly caused the child's extended hospital stay, required her admission to a treatment facility for over seven months and the subsequent need for regular therapy. These acts alone clearly and convincingly establish that A.C.'s health and development were adversely affected by the parental relationship. K.H.O., supra, 161 N.J. at 352. S.C.'s suggestions to the contrary are soundly rejected. See Id. at 349 (concluding "a child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of her mother's substance abuse during pregnancy has been harmed by her mother and that harm endangers the child's health and development").
Moreover, S.C. consistently ignored her parental responsibilities, never provided a stable or secure home for the child, failed to attend visitation, and rejected years of services extended with the goal of ending her substance abuse. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) ("A parent's withdrawal of  solicitude, nurture, and care for an extended period  is in itself a harm that endangers the health and development of the child.").
S.C. contends the "court failed to recognize [its] findings were more attributable to the fact that S.C. had lived in poverty for twenty years, than proof of parental unfitness." We reject this unfounded notion. S.C.'s unabated drug dependence was not a direct result of poverty; it was the consequence of her choice not to accept help from the rehabilitation programs offered to stave off her substance abuse. It is beyond challenge that S.C. could not raise A.C. without causing her further harm. J.C., supra, 129 N.J. at 10. Consequently, S.C.'s persistent refusal to acknowledge and treat her addiction, not her unemployment, impeded her ability to raise her daughter.
We also disagree with S.C.'s allegation that the Division disregarded rehabilitative and reunification efforts. Based upon S.C.'s history, demonstrating no attempt to abstain from illicit drugs, the Division was relieved "of its obligation to provide reasonable efforts to reunify [A.C.] with [S.C.] pursuant to N.J.S.A. 30:4C-11.3." Notwithstanding the elimination of this responsibility, the Division referred S.C. for substance abuse, psychological evaluations, provided bus passes and extended visitation. S.C. declined to participate in these services and showed no attempt to endeavor rehabilitation. The Division's efforts are never measured by their success. D.M.H., supra, 161 N.J. at 393. S.C.'s drug use triggered A.C.'s placement in foster care; her rebuff of drug treatment protracted the child's care by others. K.H.O., supra, 161 N.J. at 353. Protracted delay in finalizing a permanent placement for A.C. will cause her further harm. The Supreme Court has recognized that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. S.C. has not provided, and likely could never provide the security, permanency and stability that A.C. needs. D.M.H., supra, 161 N.J. at 385.
We are not persuaded that the Division rejected its mandate to consider alternatives to the termination of S.C.'s parental rights. Although S.C.'s mother expressed a desire to care for A.C., her failure to comply with North Carolina's requirements regarding foster placement thwarted placement possibilities. When notified of the problems, M.H.C. did not appeal. The failure to comply with North Carolina's requirements, not the hearsay statements made to the Division by the North Carolina Department of Social Services about M.H.C.'s behavior, led the Division to rule her out as a possible placement.
Finally, the Division convincingly established that the termination of parental rights will not do more harm than good. A.C. has been raised solely by her foster parents who love her and provide for all her needs. Disruption of her relationship with her foster parents will cause enduring harm, which S.C. was unaware of and would be unable to mitigate. "[W]here it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement[s] of N.J.S.A. 30:4C-15.1(a)(4)." K.H.O., supra, 161 N.J. at 363.
In making its findings, the trial court properly relied on the bonding evaluation when assessing this prong. No evidence disputed Dr. Singer's findings of the child's established bond with the foster family or his conclusion that "severing such an attachment is likely to create significant and enduring harm." Although the trial court did not comment on the inherent harm that would occur as a result of termination, it noted S.C. had visited the child twice since her birth. From these comments it is clear the two had no bond. Consequently, the harm from termination of parental rights is diminished. Based on these facts, we discern no error in the failure to order a comparative bonding evaluation between S.C. and A.C.*fn2 See R. 2:10-2 (stating "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result").
We conclude the trial court's finding that the Division presented clear and convincing evidence supporting the four prongs of the best interests of the child standard, codified in N.J.S.A. 30:4C-15.1(a), is supported by the substantial, credible evidence in the record and the court's legal conclusions are solidly grounded on the applicable law sustaining the order terminating S.C.'s parental rights and awarding the Division guardianship of A.C.