June 30, 2011
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
G.S. AND N.K.C., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF K.J.C.,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-218-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011
Before Judges Carchman, Graves and Waugh.
Defendants N.K.C. and G.S. appeal from a judgment of the Family Part terminating their parental rights and granting guardianship to plaintiff Division of Youth and Family Services. (DYFS or The Division). On appeal, defendants assert that DYFS failed to establish the four-pronged test set forth in N.J.S.A. 30:4C-15.1 by clear and convincing evidence. In both her oral and written opinion of June 28, 2010, Judge Margaret M. Hayden determined that DYFS had met its burden and terminated defendants' parental rights. We affirm.
These are the facts adduced from the extensive record. The Division's involvement with N.K.C. began in 2005 when N.K.C. gave birth to a cocaine-positive child, C.C., who N.K.C. abducted from the hospital. The child was removed from N.K.C.'s care.*fn1
On October 29, 2007, N.K.C. gave birth to a second son, K.J.C. Although K.J.C. did not test positive for any illicit substances at birth, the Division nonetheless received a referral from a University Hospital social worker regarding K.J.C.'s birth due to N.K.C.'s abduction of C.C. two years earlier. The Division sent a special response unit to the hospital to investigate, and N.K.C. informed the Division that she was residing with her father and brother in East Orange. The Division determined that K.J.C. was safe and recommended continued supervision. K.J.C. was released to N.K.C., and she was discharged from the hospital. The Division arranged for a parent aide to assist N.K.C. at home.
On November 5, a Division investigator interviewed N.K.C. at her father's home where she resided with K.J.C. N.K.C. claimed she had been sober for approximately ten months. N.K.C. identified "Greg Roberts" as K.J.C.'s biological father. She stated that Roberts was not present at K.J.C.'s birth, was "in and out of her life," and could not be relied upon for support. She informed the investigator that Roberts' last place of residence was Newark but that she did not know his whereabouts at that time.
The Division referred N.K.C. for a substance abuse assessment, and she tested negative at that time. By December 2007, N.K.C. had moved out of her father's home and was residing in a shelter with K.J.C. N.K.C. informed her caseworker that she had been placed in transitional housing by her welfare caseworker. A few weeks later, she informed the Division that she was residing with a friend in Newark. The Division set up parenting classes to commence in February 2008.
On February 5, 2008, N.K.C.'s sister, T.C., called the Division and left a message stating that N.K.C. was "out in the street and was homeless." T.C. also stated that N.K.C. was "high off drugs" and "in the area of Lincoln Park." The Division learned that N.K.C. had ceased residing with her friend as of February 2. The Division contacted the Human Services Police, located N.K.C. on February 14, and learned she had been residing at Harmony House in Newark as of February 7.
Within a week, a Division case manager transported N.K.C. to a psychological evaluation with Mark Singer, Ed. D., who had previously examined N.K.C. because of the involvement with C.C. At the evaluation, N.K.C. identified "John Carter" as K.J.C.'s biological father. Singer concluded that although N.K.C. "has historically had difficulty parenting, the data obtained from [the] evaluation does not suggest that she poses an imminent threat to her son, [K.J.C.]." Singer recommended random drug screenings, parenting skills training, and individual psychotherapy.
N.K.C. began attending parenting classes through the Family Service Bureau (FSB) of Newark on February 19, 2008, which were scheduled to be completed on April 7, 2008. N.K.C. also attended a weekly group session for substance abuse through the FSB.
In April, the Division received a referral from Harmony House indicating that N.K.C. was intoxicated on April 4 and "began swinging at other residents as well as the security" and "had a knife." Witnesses observed N.K.C. throw K.J.C. on a bed. The Newark police were summoned and N.K.C. was taken to a relative's house with K.J.C. N.K.C. left Harmony House on April 10. On April 11, the Division located N.K.C. and K.J.C. at the Riviera Hotel, at which time N.K.C. agreed to go to the Division's office with the caseworker. At that time, it was determined that N.K.C. "did not have a stable home to live with [K.J.C.]," and neglect was substantiated based on the Harmony House incident. K.J.C. was removed from N.K.C.'s custody on April 11 and placed in foster care pursuant to a court order entered the same day.
N.K.C. missed parenting group classes on March 31, April 7, and April 14, 2008. An April 17 progress report indicated N.K.C. had tested negative on all four of the drug screens she had been administered, but that she had failed to attend counseling sessions after March 24. As a result of her "non-compliance and missed appointments," N.K.C. was terminated from group counseling.
In late April, N.K.C. contacted the Division to set up a visit with K.J.C. She told the caseworker she was living with "a friend," but refused to provide an address or any other information. N.K.C. attended a visit with K.J.C. on April 24. At that time, she completed a case plan, the goal of which was family reunification. N.K.C. informed the caseworker that she would begin residing in a boarding house the following week, to be paid for with money provided by "[K.J.C.]'s father." She agreed to provide the Division with her address the following week. In the interim, N.K.C. asked the caseworker to contact her at her father's address and phone number.
N.K.C. did not attend a scheduled May 1 visit with K.J.C. nor did she attend a scheduled court hearing. The judge found by clear and convincing evidence that N.K.C. "failed to provide safe, stable housing for K.J.C., failed to comply with court-ordered services, and failed to notify the Division of her change in location."
By May 2008, the Division had lost contact with N.K.C. Despite letters sent to her father's address and the intervention of Human Service Police, the Division was unable to establish contact with N.K.C.
On October 30, 2008, N.K.C. contacted the Division for the first time since late April 2008 and requested visitation with K.J.C. N.K.C. called the Division again on November 3 regarding visitation claiming that she was "staying with family down south and ha[d] come to New Jersey for a couple of days," and had no where to stay in New Jersey. She refused to provide the caseworker with any contact information and stated she would stay in contact. A visit was scheduled for the following Thursday. When the caseworker asked N.K.C. if she was using drugs at that time, N.K.C. replied "yes."
On November 6, 2008, both N.K.C. and G.S., K.J.C.'s father, attended a visit with K.J.C. At that time, N.K.C. admitted to using heroin and cocaine on a daily basis and to having used the prior day. The caseworker contacted a rehabilitation program, and N.K.C. completed the intake process over the phone. The Division scheduled a November 10 substance abuse evaluation, and N.K.C. stated that she would contact the Division on the following day. The caseworker also managed to obtain basic information about G.S., including his birth date and social security number, but N.K.C. stopped G.S. because he was "giving [the] worker too much information." G.S. stated that he lived "here and there." He also identified his sister, D.D. (Denise), and mother, D.D. (Dana), as placement options, but did not provide their contact information.
N.K.C. failed to contact the Division on November 7 and did not show up for the scheduled November 10 substance abuse evaluation. However, she did appear with G.S. on November 13, for a visit with K.J.C. K.J.C. cried during most of the visit, and as a result, N.K.C. told the worker to end the visit early. At a compliance review hearing on the following day, which G.S. did not attend, N.K.C. was ordered to submit to drug screenings, attend substance abuse evaluation/treatment, counseling, and parenting skills training. The order also stated that "[t]he Division shall continue the search for the biological father."
During the week that followed, N.K.C. called the caseworker and left a message requesting a drug assessment. N.K.C. did not leave a number at which she could be reached, but stated she would call back. On December 4, N.K.C. contacted the Division and again requested a drug assessment. The caseworker agreed to meet her that day to begin the intake process for a detoxification program.
On December 11, 2008, the Division received a call from V.M., who informed the caseworker that G.S. is the biological father of her deceased sister's two sons. She stated she was caring for her two nephews, and expressed her interest in being considered as a placement option for K.J.C. V.M. informed the Division that G.S. and N.K.C. had lived with her while K.J.C. was still in N.K.C.'s custody, and that N.K.C. had called and asked her to serve as a placement option for K.J.C.
Unable to find N.K.C. and G.S., the Division contacted the Human Services Police to search for them. The worker indicated that N.K.C. "does call the office occasionally but there is no permanent address or phone number to locate her." N.K.C. contacted the Division on January 15 to request information for a detoxification program, at which time the caseworker provided her with information for an inpatient program at St. Michael's Medical Center (St. Michael's). The caseworker also informed N.K.C. that a compliance review was scheduled for the next day. N.K.C. responded that she was ill and could not attend. Neither N.K.C. nor G.S. attended the January 16 compliance review.
In February 2009, N.K.C. called the Division from V.M.'s home and expressed her desire to have K.J.C. placed with V.M., who had previously made the same request. The Division contacted V.M. and provided her with information to begin licensure of her home.
N.K.C. arrived an hour late for a scheduled February 5 visit with K.J.C., who had already been brought back to his foster home by the time she arrived. N.K.C. explained that she "was trying to find a way to get there," and the visit was rescheduled for the following day. The caseworker and case supervisor attempted to complete a ten-month placement family discussion with N.K.C. and G.S. in lieu of her missed visit. However, N.K.C. was "irate" and indicated that she was not interested in having the discussion at that time.
On February 11, the Division contacted St. Michael's to enroll N.K.C. in a detox program, and to provide psychiatric services. The Division also made efforts to obtain identification for N.K.C., including her birth certificate and social security card, as N.K.C. had lost these documents and could not enroll in a detox program without them.
Following up on the discussions with V.M., the Division sent a resource unit to conduct a home study of V.M.'s residence. V.M. resided in a three bedroom apartment with her two nephews, whom she gained custody of through Division involvement, and two adopted daughters. The caseworker noted that "the resource unit could not ensure approval of [V.M.'s] home because of spacing issues, violations . . . in the home such as improper exposure of the heating and the building being under renovation as well as [V.M.] not having . . . sources of income" other than social security, a subsidy from her adopted daughters, and public assistance. Ultimately, V.M. was ruled out as a resource.
K.J.C. underwent an Early Intervention Program (EIP) evaluation on February 20. The evaluation summary indicated that K.J.C. was developmentally delayed, and would need speech and occupational therapy.
The Division referred both N.K.C. and G.S. for the Reunity House Supervised Visitation Program through Family Connections as well as scheduling psychological evaluations with Dr. Bartsky. Neither N.K.C. nor G.S. appeared for the evaluations.
On April 8, 2009, the Division contacted St. Michael's and was informed that N.K.C. had not been attending the Intensive Outpatient Program (IOP). On that date, the Division also referred N.K.C. for anger management (another program later terminated for lack of attendance) and parenting skills. The Division also attempted to contact the adoptive home of N.K.C.'s first child, C.C., regarding potential placement for K.J.C., as K.J.C.'s foster home did not wish to adopt.
On April 14, N.K.C. called the Division and requested a visit with K.J.C. The Division informed N.K.C. of a permanency hearing scheduled for April 22, and explained the possibility of K.J.C.'s adoption because of the length of time he had been in foster care. When the worker asked N.K.C. for contact information to set up a visit, N.K.C. stated she had no contact information and would call back. N.K.C. also stated she had left St. Michael's IOP and was trying to attend another program. The caseworker began to inform N.K.C. that she was referred for court-ordered services including a psychological evaluation, but N.K.C. stated she would get the information the following day and ended the call.
Neither G.S. nor N.K.C. attended the April 22 permanency hearing. On that date, the court approved the Division's plan for termination of parental rights (TPR) followed by adoption. The order stated K.J.C. could not be returned to his biological parents "in the foreseeable future because the mother has not fully addressed her serious and chronic substance abuse problems and both parents are missing and have not come forward to plan for their child." The Division was ordered to implement its permanency plan no later than June 5, 2009. The Division subsequently transferred K.J.C.'s case to the adoption unit.
K.J.C. was evaluated by Saint Barnabas Health Care System at Newark Beth Israel Medical Center. The evaluating doctor concluded that K.J.C. "fits into the autistic spectrum disorder."
In May 2009, the Division initiated a search for both N.K.C. and G.S., as their whereabouts were again unknown. In June, the Division learned that G.S. and N.K.C. had been residing with V.M., but that she had ordered them both to leave her home and did not know their whereabouts.
On June 5, the Division filed a complaint for guardianship of K.J.C. On the same day, an order was entered terminating the Division litigation.
G.S. contacted the Division and expressed his interest in gaining custody of K.J.C. The caseworker informed G.S. of a court hearing scheduled for July 16, 2009, and G.S. agreed to meet the worker on June 29. G.S. informed the worker that messages could be left with his mom or sister. G.S. did not attend the meeting as he was incarcerated in the Essex County Jail. G.S. was brought to the court to attend a July 23, 2009 hearing and undergo a paternity test the same day, the results of which indicated G.S. was the father of K.J.C.
At the July 23 hearing, G.S. informed the Division that his sister and mother were potential placement options, and provided their phone number to the Division. Both the mother and sister declined to serve as placement options. In addition, the Division learned that both defendants had been arrested together on June 25, 2009 for burglary. Both defendants were brought from the jail to attend an August 20 hearing at which time an order was entered that required G.S. and N.K.C. to contact the Division upon their release from prison, and required the Division to facilitate visitation between K.J.C. and G.S. within two weeks.
The Division sent a letter to Delaney Hall, where G.S. was incarcerated, requesting that the Division be permitted to arrange visits between G.S. and K.J.C. On October 9, G.S. and K.J.C. completed a bonding evaluation with Singer at Delaney Hall. G.S. also completed a psychological evaluation with Singer. G.S. reported that he has four children, including K.J.C., but had never lived with any of them. He also reported that he and N.K.C. were still together and admitted a history of domestic violence in his relationship with her and in past relationships. G.S. also reported an "extensive criminal history" and a history of homelessness. Singer concluded that G.S. lacks the physical and emotional resources needed to parent any child at this point in time. In addition, the data further suggest[s] that, within a reasonable degree of psychological certainty, [G.S.] is not likely to become a viable parenting option for [K.J.C.] in the foreseeable future.
Even i[f] released from custody, the data suggest[s] that [G.S.] will not develop the physical or emotional resources needed to parent [K.J.C.] in the foreseeable future and will continue to have difficulty creating stability and certainty in his own life.
N.K.C. attended a psychological and bonding evaluation with Singer on October 30 at the Essex County Courthouse. Contrary to G.S.'s statements, N.K.C. denied any domestic violence in their relationship. She also denied ever being homeless.
N.K.C. also initially denied using drugs and participating in drug treatment, but then admitted she had used marijuana and cocaine, and had attended two treatment programs. She specifically admitted to using marijuana six to seven months prior to the evaluation.
Singer concluded that N.K.C. lacked the physical and emotional resources to parent K.J.C., and was unlikely to develop the skills and resources necessary to do so in the foreseeable future. He further concluded that N.K.C. "is likely to continue to struggle with her substance abuse/dependency issues and will continue to have difficulty creating stability in her own life, never mind the life of a child who is likely to have significant behavioral and emotional needs." Regarding N.K.C. and G.S.'s bonding evaluations, Singer concluded: [t]he bonding data does suggest that [K.J.C.] has not come to view either adult as being a central parental figure. The behaviors observed . . . were not consistent with [that which is] commonly observed between a securely attached child and consistent parental figures. Considering the child's age and the length of time the child has been away from his parents, such a finding is not surprising.
The data suggest[s] that, within a reasonable degree of psychological certainty, should [K.J.C.]'s relationship with either adult be severed, the child would not likely experience significant and enduring harm.
On November 20 and December 4, 2009, G.S. had a visit with K.J.C. at Delaney Hall. Visitation with N.K.C. did not occur while she was incarcerated. On December 8, G.S. completed the Delaney Hall program, which offers drug and alcohol treatment. After his release from prison, G.S. resided in a homeless shelter. N.K.C. was released from jail later in December 2009.
N.K.C. and G.S. attended a visit with K.J.C. in January, at which time the Division provided them with a bus card for transportation to visits. At a January 21 hearing, both N.K.C. and G.S. indicated that they were residing at a shelter in Newark. N.K.C. also refused to submit to a drug screening, and, as a result, a negative inference was drawn that she would have tested positive for illicit substances.
By the following hearing on February 25, N.K.C. was incarcerated on robbery charges and did not attend. G.S. attended the hearing. A permanency hearing was scheduled for March 25.
G.S. visited with K.J.C. on March 5 and 19. He appeared for the March 25 permanency hearing and a case management review, both of which N.K.C. attended by writ from Essex County Jail. K.J.C.'s Division caseworker, Dionne Adams, indicated that the permanency plan for K.J.C. was select home adoption because N.K.C. was incarcerated, and G.S. did not have suitable housing. The judge entered a permanency order approving the Division's plan of TPR followed by adoption. On the same day, G.S. tested positive for cocaine for the first time. The Division referred him for an evaluation and substance abuse program.
At a visit in March, G.S. again identified his mother and sister as well as another sister in Georgia to serve as placement options. All three identified parties declined to serve as placement resources.
In April, G.S. attended a psychological and bonding evaluation with Eric Kirschner, Ph.D. G.S. reported that he had been residing in a homeless shelter since he was released from jail, was unemployed, and receiving welfare benefits. G.S. denied any instances of major domestic violence in his relationship with N.K.C. but admitted to an extensive criminal history. He also denied any substance abuse problems, but admitted to smoking crack cocaine in the past and to using the drug one month prior to the evaluation.
Kirschner concluded that G.S. had "limited cognitive functioning" and "a pattern of poor judgment, impulse control and . . . chronic instability." Kirschner opined "that placing [K.J.C.] in the care of [G.S.] would expose him to a heightened risk of harm" because G.S.'s "history of antisocial behavior, incarceration and transience inspires limited confidence in his ability to commit to the care of [K.J.C.]." Kirschner opined "that [G.S.] lacked the psychological capacity to adequately meet [K.J.C.'s] needs for safety, stability and guidance at the time and was not expected to be able to do so in the foreseeable future."
With regard to bonding, Kirschner noted that K.J.C. cried through out most of the evaluation and concluded K.J.C. "did not relate to [G.S.] in a manner commonly observed between a securely attached child and a parental attachment figure. A bond between [K.J.C.] and [G.S.] was not evident." He recommended that "severing the relationship between [K.J.C.] and [G.S.] would not likely result in serious and enduring psychological harm to [K.J.C.]. It is [in K.J.C.]'s best interest for [G.S.]'s parental rights to be terminated so he can be legally freed for adoption."
N.K.C. attended a psychological and bonding evaluation with Kirschner on June 3, 2010, at which time she remained incarcerated. N.K.C. reported using marijuana, heroin, and crack cocaine in the past. She reported using crack cocaine everyday for about seven years, including during her first pregnancy, but stated that she stopped using when she was two to three months pregnant with K.J.C. She admitted to relapsing in April 2008 after K.J.C. was removed from her care. She indicated that she was attending group substance abuse treatment while incarcerated. N.K.C. also stated that she would be homeless upon her release from prison. When asked what her plans were for the future, she responded: "I don't have the slightest idea."
In his evaluation, Kirschner stated:
[N.K.C.] was vague as to how long she continued to use crack cocaine. Moreover, she was unable to identify a specific date as her last use. As a result, [N.K.C.]'s actual length of clean time is unable to be determined. It is also important to note that she has been incarcerated for 9-10 of the past 12 months, whereby her access to illegal drugs has been limited. [N.K.C.] has failed to demonstrate an ability to live independently while simultaneously remaining drug-free for a sustained period of time and meeting her parental responsibilities. When faced with the demands of an independent living environment, [N.K.C.] remains at risk for relapse.
Kirschner also noted that N.K.C. "failed to maintain consistent contact with [K.J.C.] since his removal" and that "periods of many months have gone by without visitation." Regarding the bonding evaluation, he noted that "[K.J.C.] did not appear to recognize [N.K.C.] as a familiar figure. . . . [K.J.C.] did not display any positive facial expressions or initiate any movements towards [N.K.C.]." Kirschner noted "[a]fter less than 10 minutes, [N.K.C.] asked to end the evaluation as she grew frustrated with [K.J.C.]'s behavior." He concluded "that a bond or attachment relationship did not exist between [K.J.C.] and [N.K.C.]," and recommended that N.K.C. "is not able to provide [K.J.C.] with adequate safety, stability, nurturance and guidance at this time nor is she likely to be able to do so in the foreseeable future." He opined K.J.C. would not suffer serious and enduring psychological harm if N.K.C.'s parental rights were terminated.
At trial, Dionne Adams, an adoption specialist with the Division and the caseworker for K.J.C.'s case as of June 2009, indicated that she last had contact with N.K.C. in mid-January. Adams explained that she was unable to contact N.K.C. once she was reincarcerated in February 2010. Adams also explained that because neither N.K.C. nor G.S. had telephone numbers at which she could contact them, the Division requested that they contact the caseworker on a weekly basis. Adams testified that she had been able to check in with G.S. on a weekly basis "for the most part," but that "[N.K.C.] called less frequently."
According to Adams, K.J.C. was removed from N.K.C.'s custody on April 11, 2008, and has resided in the same foster home since the removal. "[G.S.] would visit randomly, more so in 2008 and [there is] very little record of him visiting in 2009." G.S. was incarcerated during some of that time and had bi-weekly visits with K.J.C. while he was incarcerated. According to Adams, "as of 2010," G.S. visited K.J.C. "quite often, for the most part weekly." N.K.C. visited "randomly" prior to January 2010. N.K.C. visited K.J.C. twice in January 2010 prior to being reincarcerated in February. There were no visits between N.K.C. and K.J.C. while she was incarcerated. Adams explained that the Division attempted to set up visitation with N.K.C. while she was incarcerated, but was unable to do so because "Essex County Jail does not have the same system available for parents [as the institution where G.S. was jailed]. They didn't allow the visit . . . ."
Adams noted that [a] number of services were offered to [N.K.C.]. Because of her chronic addiction she was referred to substance-abuse treatment, inpatient for detox, intensive outpatient services. She was also referred for parenting-skill classes. The Division provided her with visitation. They -- they both received psychological evaluations, and at one point we were also issuing bus cards.
Adams also stated that an in-home parenting aide was provided to N.K.C. while K.J.C. was in her care. N.K.C. never completed the parenting skills classes to which she was referred. When asked about N.K.C.'s compliance when she was not incarcerated, Adams stated that she was not in contact with the Division for a lengthy period while K.J.C. was in foster care.
"The Division provided [G.S.] with a bus card to get to and from his appointments" and "also provided [a] psychological and bonding evaluation. He was referred . . . for a CADC assessment. And [the Division] continued to provide him with visits with [K.J.C.]." G.S. had complied with the services provided to him by the Division, and G.S. was receiving services and trying to obtain housing through welfare, although his compliance with those services was "low." Adams also corroborated the failure to secure family resources as caregivers.
Evelyn Gillon, a "Child-Specific Recruiter" at the Division's Newark Adoption Office, indicated that she completed the select home adoption process for K.J.C., which involves locating an adoptive family. Three homes, known as "selections," were received for K.J.C., and a family was chosen for K.J.C. Gillon testified that the goal for K.J.C. was select home adoption because "[a]t this point [K.J.C.] needs permanency."
Singer, who completed psychological and bonding evaluations of both N.K.C. and G.S., indicated that G.S.'s positive drug test on March 25 suggested "difficulty adhering to limits placed upon one's behavior, knowing that he's involved in [Division] litigation." Singer also noted that G.S.'s history of homelessness and "the varied nature of [G.S.'s] criminal behavior . . . including both property crimes and crimes against persons" was a concern in terms of G.S.'s ability "to create stability and consistency." He testified that G.S. was "not a viable parenting option."
Singer opined that N.K.C. was not forthcoming or credible during her evaluation, particularly with regard to her substance abuse, which suggested "a very poor prognosis in terms of recovery from substance abuse." He noted that although N.K.C. did not pose any imminent threat to K.J.C. after a February 2008 evaluation, his opinion changed after a second evaluation because her "life deteriorated since that point in time." He further opined that her failure to comply with the services provided to her indicated a poor prognosis. He concluded that N.K.C. "was not likely to be able to parent."
With regard to bonding, Singer noted that "[K.J.C.]'s needs for stability are magnified" due to his autism. He found that adoption by a foster home is in K.J.C.'s best interest because it would "provide him with the permanency and consisten[cy] that he's going to need," as well as "a lot of nurturance and guidance" which he will need due to his autism. Singer supported the Division's goal of adoption.
The Law Guardian presented Eric Kirschner, who performed psychological and bonding evaluations of G.S. and N.K.C., conducted in April and June 2010, respectively. Kirschner opined that G.S. lacked the psychological capacity to meet K.J.C.'s needs for safety, stability and guidance.
As to N.K.C., Kirschner indicated that she exhibited "a pattern of poor impulse control, a pattern of using poor judgment, and . . . also similar to [G.S.], there had been a real chronic instability on her part as far as her life, her residence, [and] her employment." He also diagnosed N.K.C. with cocaine dependence. Kirschner opined that she lacked the psychological capacity to parent K.J.C., and would not be able to do so in the near future. He concluded that reunification with N.K.C. or G.S. would place K.J.C. at a heightened risk of harm.
As we have noted, Judge Hayden issued both an oral and written opinion granting the Division relief. This appeal followed.
"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." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). That standard, codified at N.J.S.A. 30:4C-15.1(a), states that parental rights may be terminated if the Division demonstrates the following:
(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.
The Division has the burden of proving by clear and convincing evidence each prong of the best interests test. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). The four criteria of the best interests test are not "discrete and separate," but are related 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.
On appeal, G.S. contends the trial court erred in terminating his parental rights because the Division failed to meet all four prongs of the best interests standard by clear and convincing evidence. N.K.C. does not claim that the Division failed to prove the first prong of best interests test. Both the Division and Law Guardian respond that all four prongs were met by clear and convincing evidence.
"Review of a trial court's termination of parental rights is limited." M.M., supra, 189 N.J. at 278 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). A trial court's factual findings should not be disturbed if they are supported by "adequate, substantial and credible evidence." Id. at 279 (internal quotation marks and citations omitted). Although deference is generally accorded to a trial court's credibility determinations, Cesare v. Cesare, 154 N.J. 394, 411-13 (1998), "'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." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)) (alteration in original). Even then, we accord deference to the trial court's findings unless it is clear that the court erred. Ibid.
The first prong of the best interests test requires the trial court to consider whether "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
[T]he trial court must consider whether the parent has harmed or is likely to continue to harm the child. Harm, in that context, involves the endangerment of the child's health and development resulting from the parental relationship. Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time. [N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010) (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07 (2004)).]
"The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352.
As to the first prong, the Judge Hayden concluded: "the uncontroverted credible evidence shows that [N.K.C.] and [G.S.] have seriously impaired the health and well-being of their child." She outlined the evidence with respect to the first prong of the best interests standard as follows:
Here the credible evidence shows that [N.K.C.] placed her child at a significant risk of harm when she was drinking, got into a fight and was discharged from Harmony House, resulting in her child being removed. Thereafter she was unable or unwilling to participate in the services provided by the Division to be reunited with [K.J.C.]. Despite numerous referrals to drug treatment programs [N.K.C.] did not address this issue. She often was missing to the Division for months or weeks at a time. Additionally, [N.K.C.] did not participate in the parenting skills classes or anger management classes to which the Division referred her. During this period she never found stable housing or employment. Visitation was also sporadic.
Additionally, [G.S.] placed [K.J.C.] at a significant risk of harm by not offering himself as the plan from the beginning. [G.S.] was listed under his alias Greg Roberts on the order to show cause in November 2007 as a possible father. He began attending visitation with [N.K.C.] in November 2008 but still did not offer himself as the plan to care for the child. In March 2009 the Division provide[d] his name as the father to Family Connections to begin supervised visitation but he did not participate. The Division also sent him to Dr. Bartsky that month but he did not attend. He contacted the caseworker in June 2009 to discuss his son but he did not attend the scheduled appointment. In July he was arrested with [N.K.C.] on burglary charges. He was released from jail in December 2009 and currently is living in a homeless shelter with no employment. His plan is not to be the sole placement for [K.J.C.] but to raise the child with [N.K.C.].
On appeal, G.S. maintains that his failure to offer himself as a placement option for K.J.C. does not constitute a "harm" under the first prong because N.K.C. initially told him he was not K.J.C.'s biological father and his paternity was not established until September 2009, three months after the guardianship complaint had been filed.
G.S.'s citation to I.S., supra, 202 N.J. at 175-76 to support his claim that that there was insufficient evidence to find the first prong was met by clear and convincing evidence is misplaced.
Unlike I.S. where the father presented himself as a placement option within two months of learning of paternity, G.S. knew of the possibility that he was K.J.C.'s father from the date of K.J.C.'s birth. He was aware of K.J.C.'s birth, at which time he was in a relationship with N.K.C. Specifically, G.S. informed both Dr. Singer and Dr. Kirschner that he had been in a relationship with N.K.C. "for the past three years" and "used to see [K.J.C.] when he was with the mother." He informed Kirschner that he would care for and "spend a lot of time with [K.J.C.]" prior to his removal when he was "around 7 or 8 months old." G.S. also told Singer that N.K.C. and K.J.C. moved in with him at the Riviera Hotel when she was thrown out of Harmony House in April 2008, at which time K.J.C. was removed.
G.S. knew of K.J.C.'s birth and acted as a father to him prior to removal. Further, he knew of K.J.C.'s removal. However, he did not attend a visit with K.J.C. until November 6, 2008, and was missing to the Division by January 2009. His whereabouts remained unknown to the Division until June 24, 2009, when he contacted the Division. He was incarcerated shortly thereafter, and located in mid-July after the Division initiated a search.
G.S. refrained from contacting the Division for nearly seven months after K.J.C.'s removal. He then failed to maintain contact with the Division, even prior to incarceration. Only after his release from prison in December 2009 did G.S. begin to consistently visit K.J.C. Even then, he did not offer himself as a placement option. The abject failure to ascertain who was caring for his child constitutes parental harm to K.J.C. arising out of the parental relationship. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) ("A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child."). The "persistent failure to perform any parenting functions and to provide nurture, care, and support for" K.J.C. is enough, id. at 380, and "[c]courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Id. at 383.
G.S. has never been able and continues to be unable to serve as a placement option for K.J.C. As noted by the trial judge, he is homeless and unemployed. G.S. is unable to obtain stable housing or financially provide for K.J.C. Further, as noted by both Singer and Kirschner, he has a lengthy criminal history that would expose K.J.C. to a heightened risk of harm were he placed with him.
The judge's conclusion as to prong one is well-supported by the record.
The second prong of the best interests standard focuses on conduct that constitutes parental unfitness. D.M.H., supra, 161 N.J. at 379. The inquiry under the second prong is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child. Alternatively, under this second criterion, it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm. [K.H.O., supra, 161 N.J. at 348-49 (citations omitted).]
In deciding parental fitness, the court "should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care."
N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).
As to the second prong, the trial court stated:
Here the evidence shows that [N.K.C.] has a long-standing drug abuse history for which she never got significant treatment. While she has presumably been without drugs for the time she has been incarcerated, without treatment it is likely that she will have a difficult time remaining off drugs when she is released. Her denial of prior drug use and treatment to Dr. Kirschner strongly suggests she has not come to terms with her addiction and her chances of staying drug free are poor. Additionally, it is unknown when she will be released from jail and begin to take the necessary services for stability such as anger management [which] she failed to participate in before her incarceration. Her plans upon release are vague as she admitted she will be homeless and has been for many years.
[G.S.] also has a long history of instability and homelessness. He also has admitted using crack cocaine as recently as April 2010. Throughout his lifetime [G.S.] has displayed significant antisocial behavior with numerous convictions and incarcerations. He does not plan to parent [K.J.C.] alone but as a couple with [N.K.C.]. [G.S.] did not express any concern about her past history of drugs or instability.
The strongest predictor of the future is the past. In this case [N.K.C.] has failed to address the drug, anger and instability problems that [led] to the removal. [G.S.], who is 47 years old, has a lifetime of instability to address. Even if these individuals now begin to address their drug problems, it takes a substantial amount of time to become truly drug free. As a couple they do not appear to bring out the best in each other; [N.K.C.] told Dr. Kirschner that she and [G.S.] broke into a building together in 2009 and got caught and incarcerated for several months. The past history of the parents strongly demonstrates that they will not be able to remove the harm they are causing [K.J.C.] now or in the foreseeable future.
The judge additionally noted that "[K.J.C.] has lingered in foster care long enough" and that neither parent appears to have the ability to meet K.J.C.'s special needs, particularly for stability and consistency.
N.K.C.'s argument that the "Division never established that [she] did not have her drug issues under control," is without merit, as is her claim that the judge's finding that she is unwilling to complete a drug program is not substantiated by the record. The facts prove to the contrary, and the judge's conclusion is amply supported.
Here, the record indicates that N.K.C. used marijuana, heroin, and crack cocaine. She informed Kirschner that she had used crack cocaine everyday for a period of about seven years. She was also unable to identify the specific date she last used crack cocaine. Singer's opined that there is "a very poor prognosis in terms of recovery from substance abuse."
The Division referred N.K.C. for substances abuse assessments as early as November 15, 2007, and made numerous program referrals for her. She was referred for a substance abuse program through FSB, but ceased attending. As reported by N.K.C. to Singer, she had entered two treatment programs in the past. Specifically, the record reflects that she was attending group substance abuse treatment while incarcerated, and had previously enrolled in and completed a brief detoxification program at St. Michael's in February 2009. However, N.K.C. did not attend the intensive outpatient program at St. Michael's.
Additionally, Kirschner opined that N.K.C. would be unable "to live independently while simultaneously remaining drug-free . . . and meeting her parental responsibilities." The judge's conclusion N.K.C. failed to address her substance abuse problem is amply supported by the record.
G.S. argues that the trial judge improperly found him "unfit" to parent based on his poverty. The trial judge did not accord improper weight to the fact that G.S. would be unable to financially provide for K.J.C. The judge relied upon the following to determine G.S. was unfit: his "long history of instability and homelessness"; the fact that he had recently tested positive for cocaine; his extensive criminal history and recent incarceration; and his inability to provide permanency and stability for K.J.C. in the near future. These "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care" are sufficient to satisfy the second prong of the best interests standard. K.H.O., supra, 161 N.J. at 353.
G.S. also argues the trial judge erred by failing to give adequate weight to the fact that the Division filed for guardianship before his paternity was established and to his "regular attendance" at scheduled supervised visitations with K.J.C. G.S.'s paternity was established in September 2009, based on a July 2009 paternity test. G.S. declined to present himself to the Division prior to July 2009, only visiting K.J.C. twice in November 2008 before disappearing again, despite his knowledge of K.J.C.'s birth and removal while he was in a relationship with N.K.C. Further, the record indicates that G.S.'s visitation attendance became "regular" as of January 2010, nearly two years after K.J.C. was placed in foster care.
Finally, G.S. argues that he "can become parentally fit in time to meet the needs of [K.J.C.] because the Division failed to show the presence of any type of unfitness that would preclude [him] from adequately parenting." The record reflects that G.S. was recently released from jail and did not have housing or employment at the time of trial. We find no error here.
Both defendants assert that the Division failed to establish the elements of the third prong by clear and convincing evidence.
Pursuant to N.J.S.A. 30:4C-15.1(c), reasonable efforts include, but are not limited to, the following:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation.
"Reasonable efforts" include services that "are individually assessed to be relevant to the case goal [and] coordinated with other services," and "that have a realistic potential to meet the child's needs for a safe, secure, and permanent relationship with a family or another permanent arrangement." N.J.A.C. 10:133-1.3. The trial court must view reasonable efforts requirement "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.
With regard to N.K.C., the trial judge concluded [t]he undisputed evidence shows that the Division provided numerous services to [N.K.C.] to help her address the issues that led to the removal of [K.J.C.]. These included visitation, parenting classes, bus cards, substance abuse evaluations and treatment, GED referral, and psychological and psychiatric evaluations. Unfortunately, she was noncompliant with all services.
Even visitation she only attended sporadically.
We do not dwell on the issue of services provided to defendants as the record is replete with continued efforts by the Division to provide services. The judge's conclusion in this regard has substantial support in the record.
Under the third prong, the Division must also show "the court has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Here, the judge concluded "[t]he Division had explored proposed relatives suggested by both defendants but as they were either not suitable or unwilling they were all rule[d] out." Both N.K.C. and G.S. argue that the Division's rejection of V.M., who had custody of G.S.'s sons from a prior relationship, was "arbitrary and unjust." G.S. also asserts that Division failed to appoint V.M. as a Kinship Legal Guardian (KLG), stating that she was K.J.C.'s "maternal aunt" and an "acceptable family resource." However, the record reflects that V.N. had no connection, biological or otherwise, to K.J.C. She was the maternal aunt to G.S.'s two other children by way of their mother, and was unrelated to G.S.
Although the Division contacted G.S.'s sisters multiple times and N.K.C.'s father regarding K.J.C., only V.N. expressed an interest in caring for K.J.C. On December 30, 2008, a caseworker visited V.M.'s three-bedroom apartment, where she lived with two adopted daughters and two of G.S.'s sons. The two daughters shared a mattress on the floor in one room, while the two boys shared bunk beds. A resource unit subsequently identified inadequate space, exposed heaters, ongoing building renovations, and a lack of income other than SSI and public assistance as reasons for declining to approve V.M.'s home for placement.
While the Division could have assisted V.M. in remedying certain problems, by, for example, providing furniture, V.M.'s lack of income and inadequate space are legitimate concerns regarding her ability to provide and care for K.J.C. The Division did not arbitrarily rule out V.M. as a placement option. Moreover, the Division contacted N.K.C.'s father and two of G.S.'s sisters multiple times regarding K.J.C. They did not wish to adopt, and there were no other alternatives to termination. The Division met its burden under prong three.
Under the fourth prong of the best interests test, the Division must demonstrate by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The Supreme Court has focused on "the paramount need the children have for permanent and defined parent-child relationships" in making this determination. In re Guardianship of J.C., 129 N.J. 1, 26 (1992). With regard to the fourth prong, the judge found:
Here [K.J.C.] will have the opportunity to be adopted into loving permanent homes with adoptive parents who will be able to meet his special needs only if he is freed for adoption.
The credible testimony of both Dr.
Kirschner and Dr. Singer made evident that [K.J.C.] is not bonded to either parent and would not suffer any harm from termination of their parental rights. Thus, the undisputed evidence shows that [K.J.C.] will not suffer any harm from termination of the parents' parental rights.
The undisputed evidence also shows that both parents lack the capacity to parent [K.J.C.] and it will not be safe to return him home now or in the foreseeable future. The Supreme Court has recognized that it is not in a child's best interest to "prolong the resolution of his status by indefinitely extending his current foster care placement." [N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).]
Here [K.J.C.] would suffer little harm from the severing of ties with parents who lack the capacity to provide minimally adequate parenting. On the other hand, while an adoptive home has not yet been identified, he will only be able to have his need for a permanent home with a nurturing adult met through adoption if the parental ties are severed. Balancing the little harm from the termination of parental rights versus the huge benefit to [K.J.C.] resulting from the permanency of a loving stable home, it is clear that termination of parental rights under the circumstances here will not [do] more harm than good.
N.K.C. argues the trial judge's failed to consider "the fact that the foster parent's unwillingness to adopt and the absence of an identified select home family" and that termination therefore would not necessarily result in adoption and permanency.
Here, the credible and undisputed evidence in the record supports the judge's finding that neither N.K.C. nor G.S. could provide K.J.C. with "the paramount need" for permanency at the time of trial. Nor could they, according to either expert's opinion, provide basic safe and stable housing, let alone permanency, in the foreseeable future. Further, K.J.C. has been placed in a select home that is willing to adopt him. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (citing In re Adoption of a Child by P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)), certif. denied, 171 N.J. 44 (2002). As previously noted, N.K.C. remained incarcerated at the time K.J.C. was placed in a select home, G.S. was unable to offer himself as a placement option were his rights not terminated, and neither presented an alternative permanent placement plan for K.J.C. at the time of trial.
G.S. also argues that Singer and Kirschner's evaluations were flawed because they failed to consider the effect of K.J.C.'s autism on his ability to bond with G.S. and N.K.C. Kirschner noted that an autistic child would have more difficulty developing close emotional relationships with others. Singer opined regarding autism and stated K.J.C. "is likely to have difficulty forming attachments to other people." He further testified: "I'm not assessing autism. I was assessing bonding. . . . [E]verything a child brings to a bonding evaluation affects a bonding evaluation."
Singer's evaluation established that a bond was lacking between K.J.C. and his natural parents based on "age and the length of time the child has been away from his parents." Kirschner's evaluation also attributed the lack of any bond between K.J.C. and his parents due to the failure to maintain consistent contact with K.J.C. since his removal.
We are satisfied that the Division established prong four by clear and convincing evidence and the judge correctly entered judgment terminating defendants' parental rights.