April 18, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.D. AND B.D., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0023-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2011
Before Judges Carchman and Messano.
Defendant D.D. appeals from the Family Part's order terminating her parental rights to two of her children, A.D. and B.D. Defendant raises the following points on appeal:
I. THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE DEFENDANT-APPELLANT, D.D.
A. The evidence adduced at trial did not support the court's finding that the State met prong two of N.J.S.A. 30:4C-15.1(a) as D.D. is willing and able to provide a safe and stable home for her children and there is no delay in permanent placement.
B. The evidence adduced at trial did not support the court's finding that the State met prong four of N.J.S.A. 30:4C-15.1(a) as termination of D.D.'s parental rights will do more harm than good.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
D.D. and W.D. had four children together: a daughter, A.D., born September 11, 1997; another daughter, B.D., born February 17, 1999; a son, L.D., born July 20, 2002; and another daughter, F.D., born October 31, 2004.*fn1 The Division of Youth and Family Services (DYFS or the Division) first became involved with the family in 2001 when it received a referral that defendant and W.D. were using cocaine and neglecting their children. The Division spoke to the parents at their home and requested that they submit to a drug test; they refused. The children appeared to be healthy and the home was well-kept, leading the Division to conclude the allegations were unsubstantiated.
The Division received another referral in May 2002 stating that defendant was pregnant, and she and W.D. were using cocaine. The Division was unable to contact the family. In July, the Division received a referral from the South Jersey Hospital indicating that defendant had given birth to L.D. Although defendant and L.D. tested negative for drugs, it was revealed that defendant had tested positive for marijuana on January 8. The Division again determined the allegations of abuse and neglect were unsubstantiated.
On October 8, 2004, defendant was arrested for theft, receiving stolen property and forgery. W.D. contacted the Division on January 5, 2005 complaining that the children's maternal grandparents, J.T. and H.T., who lived in Pennsylvania, were physically abusing the children. At the time, W.D. had separated from defendant, who was homeless and sometimes stayed with her parents.
W.D. was not working either and was receiving welfare and staying with his mother, L.S. W.D. had custody of the children. After conducting an investigation, DYFS found the charges against the maternal grandparents to be unsubstantiated.
On January 31, 2005, defendant was sentenced to a minimum of three months in prison following her guilty plea to theft and forgery. In March, she was again sentenced to a period of probation after pleading guilty to theft. On May 12, defendant was again arrested for theft and receiving stolen property.
On May 23, 2005, the Media, Pennsylvania police made a referral to DYFS. W.D. was transporting L.D. and F.D. to defendant's residence for visitation when he was arrested for possession of two small baggies containing cocaine residue. Defendant was residing with a friend at the time.
DYFS investigated and spoke to L.S. She denied any knowledge of her son's drug use, but agreed to a safety plan wherein she would not leave the children alone with W.D.
On June 24, 2005, defendant was again arrested for theft, forgery, resisting arrest and possession of drug paraphernalia.
J.T. contacted the Division regarding the arrest and further advised that defendant and W.D. were both using cocaine. J.T. indicated that A.D. and B.D. were in Florida with their father and she was looking after L.D. and F.D. However, H.T. and J.T. were moving to an age-restricted community where the children were not permitted to reside. On June 27, J.T. and H.T. left L.D. and F.D. at Child Protective Services in Pennsylvania, and the two children were placed in foster care. W.D. returned from Florida on July 20, 2005, and Child Protective Services returned L.D. and F.D. to him.
On September 1, 2005, defendant was sentenced to two years probation after pleading guilty to theft and forgery.
On January 3, 2006, the Division received a referral from J.T. and H.T. who were once again caring for L.D. and F.D. Defendant had just been released from a drug rehabilitation program, lacked food or money and asked her parents for assistance. The grandparents could not reach W.D. or L.S. who were in Florida with B.D. and A.D. When J.T. and H.T. advised that they were unable to care for the children, DYFS took temporary custody of L.D. and F.D.
On January 5, 2006, the Division filed a complaint seeking custody of L.D. and F.D. The court granted the Division's request and placed the children in the physical custody of L.S.
The order to show cause further barred W.D. from residing with his mother and granted defendant and W.D. liberal visitation with the children.
On the return date, January 24, the judge granted physical custody of all four children to L.S.*fn2 He ordered defendant to continue the substance abuse treatment she was receiving and further ordered W.D. to undergo psychological evaluation and substance abuse treatment. The judge permitted defendant unsupervised visitation with her children as long as W.D. was not present; W.D. was granted supervised weekly visitation. On April 3, 2006, defendant and W.D. entered into a stipulation acknowledging they were "both in need of DYFS Services to address issues relevant to substance [a]buse."*fn3 Orders entered after subsequent compliance reviews over the next year all required defendant to continue participation in substance abuse treatment.
On May 1, an arrest warrant for defendant was issued in Pennsylvania because she violated her probation. On June 7, 2006, she was arrested for possession of a controlled substance.
On August 9, defendant pled guilty to a pending charge of theft by deception and was sentenced to a minimum of three months confinement. The Division was advised that defendant had been admitted to the Pyramid Recovery Education Program at George W. Hill Correctional Facility in July and was expected to complete the program at the end of August.
On August 22, 2006, the Division requested that the Pennsylvania Office of Children & Youth Services evaluate J.T. and H.T. for a possible foster home placement for the children. However, defendant had been released from prison and was now residing with her parents. On September 6, defendant pled guilty to possession of a small amount of marijuana and was sentenced to fifteen days confinement. On October 17, apparently as a result of violating probation, defendant was sentenced to a minimum period of six months confinement. However, although the circumstances are not entirely clear from the record, by November, defendant had entered an intensive outpatient drug program, Mirmont, in Pennsylvania. Defendant successfully completed the program on December 27 and was referred to outpatient therapy at Northwestern Human Services of Delaware County, Pennsylvania.
Psychological evaluations of B.D., A.D., D.D., L.S., J.T. and H.T. were conducted at the Division's request in November and December of 2006. Janet Cahill, the Director of the Rowan University Child & Family Assessment Clinic, concluded that all four children could eventually be returned to defendant under the following conditions: 1) defendant remained "compliant" with substance abuse treatment including medications; 2) J.T. and H.T. were willing to commit to caring for the children if defendant had a "relapse"; 3) a "firm and predictable visitation schedule" was created with L.S.; and 4) visitation with defendant was gradually increased. Cahill also stated that "[c]learly the frequent changes in placement, the lack of consistent structure and parenting styles and the high level of acrimony between the grandparents has had a negative impact on the [children's] functioning."
Cahill concluded that defendant "meets the criteria [for] borderline personality disorder, which manifests in an unstable mood and pattern of relationships along with other symptoms." Cahill further noted that despite defendant's then six-month period of sobriety, she had relapsed many times in the past, and was "very emotionally fragile, as well as having few supports."
A permanency hearing was held on December 4, 2006, and the court accepted concurrent plans for reunification with defendant as well as the alternative plan of kinship legal guardianship (KLG) with L.S. On March 5, 2007, legal custody of L.D. and F.D. was transferred to defendant. The two younger children have resided with their maternal grandparents ever since, and they are not the subject of this appeal.*fn4 Sibling visitation was arranged between L.D. and F.D., and A.D. and B.D. who continued to reside with L.S.
A psychiatric evaluation of defendant by Dr. Usha Kasturirangan was conducted for Northeast Human Services on March 28, 2007. Defendant was diagnosed with "[b]ipolar I depression" and "[c]ocaine [d]ependence."
Cahill re-interviewed defendant on August 8, 2007. Defendant admitted relapsing in April. Defendant further conceded that "she left the home, and her children, for days on end without telling anyone her whereabouts." Cahill noted that defendant was emotionally fragile, demonstrated poor problem solving skills and felt bitter and angry. Cahill revised her recommendation regarding reunification.
[I]t is very unlikely that [defendant] will be able to stabilize in the near future. I can not [sic] identify . . . any additional services that are likely to improve [defendant]'s functioning to the point where she could, (in a reasonable time frame) independently parent her children. In my professional view, it is not in the best interests of the children to extend this case any further.
On August 15, 2007, DYFS received an "Affidavit of Probable Cause" from the Marple Township, Pennsylvania police department. Defendant had forged a prescription for Oxycodon and tried to fill it at a pharmacy. Defendant admitted to the police that she had been addicted to prescription pain killers for some time. On August 24, Pennsylvania probation informed DYFS that defendant had tested positive for opiates and cocaine. On September 15, defendant returned to Mirmont for outpatient treatment but was discharged on September 27 due to excessive absences and failure to attend two consecutive sessions.
On January 7, 2008, the Division filed a complaint seeking to terminate defendant's parental rights with respect to A.D. and B.D. The abuse and neglect complaint was dismissed.*fn5
On February 11, defendant was again sentenced to a maximum of one year probation after pleading guilty to possession of a controlled substance.
Genevieve Chaney, a psychologist, evaluated defendant on three occasions between December 2007 and April 2008. Defendant first reported that she last used cocaine in September 2007, but, in a later interview, stated she had used cocaine in February 2008. Chaney noted that "[p]eriods of sustained abstinence from substances appear infrequent in recent years." Chaney further opined that defendant suffered from "ongoing situational depression" and "maladaptive personality features." Regarding defendant's ability to parent, Chaney opined that defendant was "an impulsive individual who will act without much insight about how her feelings are impacting her judgment and behavior."
Chaney also completed bonding evaluations with W.D., D.D. and L.S. in February and April 2008. Chaney concluded:
At the present time, [A.D.] and [B.D.]'s permanency needs appear best served in their current placement with [L.S.]. Neither [W.D.] nor [defendant] appears able to provide them with the safe, stable, and reliable home environment they require. It is acknowledged that the children will likely experience emotional trauma in the form of grief and loss if they were to abruptly lose contact with either parent.
The most advantageous outcome would be for the children to remain with [L.S.] but continue to have contact with their parents.
Defendant again participated in substance abuse counseling at the Next Step Recovery House in April 2008. She was discharged unsuccessfully from the program. DYFS was informed by defendant's probation officer that she was arrested on April 10 because of a positive drug screen and remained incarcerated in Pennsylvania until May 2.
On May 20, defendant again enrolled in the outpatient treatment program at Mirmont. She successfully completed the program on November 25, 2008. In the interim, defendant was arrested on June 30 for a probation violation, taken into custody and released on July 9.
On December 5, 2008, defendant appeared in court for a case management conference and was ordered to undergo a urine screen; it was positive for cocaine. In April 2009, defendant submitted a sample for a "hair follicle test," which tested positive for cocaine.
On May 20, 2009, defendant was arrested for theft and receiving stolen property. On November 2, 2009, she was again arrested for procuring drugs by fraud and theft.
On September 3, 2009, the judge approved the Division's permanency plan that proposed termination of parental rights and adoption of A.D. and B.D. by L.S. The Division subsequently filed a guardianship complaint on October 22, 2009.*fn6
On December 21, 2009, defendant was arrested for identity theft and fraud and was incarcerated as of January 2010. On March 9, 2010, after pleading guilty to theft, fraud and procuring drugs by fraud, defendant was sentenced to nine months confinement and three years probation. During the guardianship trial that commenced on March 30, defendant remained incarcerated and appeared by video conference or telephone.*fn7
At trial, the Division produced James Loving, a psychologist, as its expert witness. Loving completed psychological evaluations of defendant and L.S., as well as bonding evaluations between them and the two children. His reports were admitted in evidence.
Loving testified regarding the various tests administered to L.S. He opined that "there were no findings . . . that would raise concerns about [L.S.'s] ability to parent or her ability to provide appropriate care to the girls." Loving explained that although L.S. originally supported KLG as a goal, she had since become strongly committed to adopting A.D. and B.D. L.S. opposed KLG because she believed defendant presented a long-term risk to the girls and adoption would provide closure and permanency. Loving strongly agreed with both propositions.
Loving did not conclude that defendant was bipolar, but he acknowledged that she displayed "traits" of "borderline personality disorder" exhibiting "a long-standing pattern of self-defeating behavior that plays out in terms of relationships . . . ." Noting defendant's lengthy history of drug abuse, Loving testified:
[I]f there were ongoing or continued or resumed drug use, . . . this would speak directly to how safe [defendant] would be as a full-time parent, she would put herself at risk for additional arrests or incarcerations, she would place herself at risk for erratic behavior that could put the kids at risk of harm and so on.
Loving also concluded that defendant suffered from a major depressive disorder that "could interfere with effective parenting," and "[d]ysthymiac disorder," "kind of a low grade depression."
Loving opined that defendant had "a fairly high risk for relapse" of drug abuse, and her prognosis in this regard was "guarded at best." Loving noted that despite "treatment efforts already put in place," defendant had suffered repeated relapses and periods of incarceration. He did not believe reunification was an option.
In the bonding evaluations, Loving found that A.D. and B.D. were positively attached to their mother, and that their relationship was a "largely peer-like style of interacting, characterized by fun and mutuality." Loving also found that the girls "share strong and mostly positive attachments with [L.S.] . . . . [I]t is clear that the girls have come to relate to
[L.S.] as their primary and most reliable caregiver, thanks to the events of the past several years." In his testimony, Loving concluded that A.D. and B.D. had a "need for permanency . . . a sense of being in one place . . . and a definite household that they can count on, taking them out of a situation of limbo, [that] would be more important than the ongoing need to keep contact with their mother . . . ."
After Loving testified, the Division called the family's current caseworker, Linda Godwin, as its final witness. Godwin detailed much of the history we have outlined above, as well as the services DYFS had provided to defendant and W.D. Defendant did not testify, nor did she call any witnesses on her behalf.
The judge placed her oral decision on the record on May 26, 2010. After reciting much of the Division's early involvement with the family, the judge noted that L.D. and F.D. were the subject of an active child welfare case in Pennsylvania and currently resided with their maternal grandparents who had custody of the children. The judge further noted that the maternal grandparents were unwilling to have defendant reside with them when released.
The judge found that DYFS had proven prong one of the four-prong test contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. She noted that when A.D. and B.D. were first placed with their paternal grandmother, defendant was unable to care for them because of her drug addiction. The judge further determined that defendant "literally disregard[ed] [her] [p]robation obligations" thereafter, resulting in harm to her two daughters.
The judge surmised that "over the next five years," defendant was unable "to provide a home for the children for any sustained period of time . . . leaving the children in a stage of limbo . . . [which] is the type of ongoing harm . . . contemplated by the second prong of the best interest test." The judge recognized that "none of the [expert] opinions . . . reach[ed] th[e] conclusion" that A.D. and B.D. "would be at risk of serious and enduring harm . . . [if] no longer . . . in their paternal grandmother's sole custody"; but she concluded "it's implicit in the notion that continuing to move anywhere else and having nowhere else to move would cause that type of serious and enduring harm."
The judge found that DYFS had made "reasonable efforts" to address defendant's substance abuse and criminal conduct, but "these reasonable efforts over the course of five years have not resulted in any sustained improvement." The judge reviewed in detail the reunification efforts, including the concurrent plan to proceed toward KLG, and determined "there really are no other reasonable alternatives [to termination] to consider at this time."
As to prong four of the best interests test, the judge found "it will not do more harm than good to the children for the right to be parented by their mother to be ended along with her right to parent them and for the adoption to go through." The judge entered the order under review.
We begin by observing some basic principles. Generally, "[a]n appellate court must defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010). "We ordinarily 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 & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We also defer to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quotations omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
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) [D.Y.F.S.] 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.
Defendant argues that the Division failed to prove the second prong of N.J.S.A. 30:4C-15.1(a) because she "[wa]s willing and able to eliminate the harm that her children previously faced as a result of her battle with substance abuse." She further argues that H.T. and J.T. expressed a willingness to care for all four children, and, if defendant remained drug free, they were prepared to assist her in the "foreseeable future."
The second prong of the best interests standard "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; (2) "the parent has failed to provide a 'safe and stable home'"; or (3) "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)). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009) (emphasis added).
A parent's incarceration cannot be equated necessarily with parental unfitness. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). "Nonetheless,
[i]imprisonment necessarily limits a person's ability to perform the regular and expected parental functions, [and] [i]t also may serve to frustrate nurturing and the development of emotional bonds and as a substantial obstacle to achieving permanency, security, and stability in the child's life." Ibid. (first alteration in original) (citations and quotations omitted). Any analysis as to parental fitness must include a "broad inquiry" into the "nature of the crime causing the incarceration," the "potential for rehabilitation" and the "length of the custodial term." Ibid.
In this case, the judge's findings and conclusions regarding prong two are well-supported by the record. Since L.S. was given physical custody of A.D. and B.D., defendant's recurrent drug abuse, criminal arrests and incarceration have consistently prevented her from offering a stable, protective home to her children. Every expert who evaluated defendant essentially opined that her long-standing drug abuse, inability to maintain sobriety despite intensive counseling and continued involvement with the criminal justice system demonstrate an inability, despite her efforts, to eliminate the harm posed to her children. While defendant may have genuinely wished to eliminate the possibility of harm to A.D. and B.D., the evidence suggested that she was unable to do so. K.H.O., supra, 161 N.J. at 352.
That defendant's parents are willing to care for A.D. and B.D. on an interim basis is of little importance because the delay in permanent placement, i.e., being kept in a state of limbo, will only add to the harm. The Division satisfied its burden of proof as to prong two.
Defendant also argues that DYFS failed to meet its burden of proof regarding prong four of the best interests test. She contends that Loving acknowledged A.D. and B.D. possess a "positive attachment" to her, that the children expressed a preference to remain with defendant, and that allowing L.S. to adopt them will "forever extinguish the parent-child and sibling relationships."
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents[?]" Ibid. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (citation and quotations omitted). Adequate proof as to prong four does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.
In this case, although the judge failed to specifically explain what evidence supported a finding as to prong four, she extensively reviewed Loving's conclusions regarding the bonding evaluations. The judge noted that L.S. had a "commitment" to the children, that adoption was "feasible and likely" and that any further delay to permit defendant's eventual, but unlikely, sobriety, left the children "in limbo." The lack of permanency and stability posed a greater harm to A.D. and B.D. than did terminating defendant's parental rights. Our review of the evidence in the record as a whole leads us to conclude that DYFS proved prong four of the statutory best interests test by clear and convincing evidence.