On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-51-10
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
S.L.C. appeals from an October 28, 2010 order of the Family Part terminating her parental rights to her sons, K.C.R., then two, and Z.C., then almost one, and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purposes of effectuating the children's adoption.*fn1 On appeal, S.L.C. argues DYFS did not prove by clear and convincing evidence the four statutory prongs required to establish that her sons' best interests require severance of her parental ties. We note the Law Guardian supports termination of S.L.C.'s parental rights to K.C.R. and Z.C.
After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179
N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.
We need not describe in detail the many facts the trial court considered in its determination. We instead provide a brief summary of the cogent facts we considered in concluding the judge's findings were well supported by the record.
The following testimony and evidence were presented during the three-day trial commencing on September 17, 2010, and concluding on October 18, 2010. DYFS presented the factual testimony of its caseworkers, Lula Green and Deridre Carter, and the expert testimony of Donna LoBiondo, Ph.D., who performed a psychological evaluation of S.L.C. and bonding evaluations of K.C.R. with both S.L.C. and with his current caregiver, T.C., a maternal aunt who wished to adopt him. S.L.C. presented the testimony of T.C. that she would adopt K.C.R. but her preference was for kinship legal guardianship (KLG) over adoption. S.L.C. did not testify on her own behalf and presented no expert testimony.
S.L.C. is the biological mother of K.C.R., born August 7, 2008, and Z.C., born November 14, 2009. Both of the children were removed and placed in DYFS' custody following their births. At the time of trial, the older child resided with his maternal aunt and Z.C. resided with a family friend, L.C. Both of the caregivers were committed to adopting the respective child if and when S.L.C.'s parental rights were terminated.
DYFS initially received a referral in February 2008 that twenty-year-old S.L.C., who was incarcerated at the Juvenile Justice Commission-Hayes Unit (JJC), was three months pregnant. When S.L.C. was seventeen years of age, she committed aggravated sexual assault and related charges against her female cousins, five and six years old, by penetrating them digitally, grinding on them, and watching pornography with them. She was sentenced to two consecutive two-year sentences, released on parole in November 2007, and re-incarcerated on a parole violation in January 2008 for failing to report, violating the terms of her house arrest, and failing to submit to a drug test. S.L.C. was also classified as a Tier II registered sex offender under N.J.S.A. 2C:7-8.
The day after S.L.C.'s discharge from the hospital on August 10, 2008, DYFS took custody of K.C.R. pursuant to an emergency removal. DYFS promptly filed an order to show cause and a complaint for temporary custody of K.C.R. under an "FN" (abuse and neglect) docket, and was granted care, custody and supervision of him. After a fact-finding hearing on November 7, 2008, the court directed supervised weekly visitation.
Following an interim foster placement, K.C.R. was moved to his aunt's on September 4, 2008, where he has remained. T.C. is licensed by DYFS for placement. T.C. testified, consistent with her statements to DYFS, that she would adopt K.C.R. if his mother's parental rights were terminated, but she would prefer to be granted KLG of him.
DYFS subsequently changed its goal to adoption for K.C.R. because S.L.C. was not compliant with services, including individual sex offender therapy, which goal was approved by the court following a permanency hearing on August 13, 2009. Accordingly, on October 1, 2009, DYFS filed an order to show cause and complaint for guardianship of K.C.R.
On November 18, 2009, four days after Z.C. was born, DYFS filed an order to show cause and a complaint for temporary custody of him under an "FN" (abuse and neglect) docket and was granted custody, care and supervision of him when he was discharged from the hospital. S.L.C. was granted weekly supervised visitation. Initially, DYFS' goal was to reunify Z.C. with his mother, but following a fact-finding hearing on February 17, 2010, the court concluded S.L.C. had abused and neglected Z.C., as she was a convicted sex offender and failed to comply with court-ordered services. The court additionally noted S.L.C. appeared that day in court, but failed to stay for the fact-finding portion of the hearing.
At the permanency hearing on March 25, 2010, the court determined that although S.L.C. was compliant with parenting classes, she continued to be noncompliant with the court-ordered psychotherapy for sex offenders and thus DYFS' plan for termination of her parental rights followed by adoption was an appropriate plan. DYFS was directed to file an amended complaint for guardianship of Z.C. Accordingly, on May 5, 2010, DYFS filed an amended Order to Show Cause and Complaint for Guardianship of K.C.R and Z.C.
DYFS explored a variety of placements for Z.C., who spent about four months in an interim agency-approved home. DYFS initially contacted T.C. about serving as a possible placement for Z.C.; however, because she was already caring for K.C.R. and her own son, she was unable to take on another child. DYFS had also assessed S.L.C.'s mother as a possible placement for both of the children. The mother, however, was found to be unfit for placement because of her prior involvement with DYFS when S.L.C. was a juvenile, as she was substantiated as a perpetrator. Because S.L.C. and her mother lived in the same house, it also adversely affected S.L.C.'s ability to regain custody of the children. Although DYFS referred S.L.C. to Newark Emergency Housing for housing services, she failed to appear on two occasions.
On March 30, 2010, Z.C. was moved to the home of L.C., a family friend of S.L.C., where he has remained. As of trial, L.C. was licensed by DYFS and her home was found suitable. L.C. expressed an intention to adopt Z.C.
The day before trial began in September 2010, S.L.C. offered her brother as a possible adoptive caretaker for Z.C. Although DYFS requested S.L.C. have her brother come to court during trial to start the process of evaluating him, he did not show up to court.
Dr. LoBiondo testified about the evaluation she performed in 2008, noting it primarily focused on S.L.C.'s risk of harm to K.C.R., as opposed to her ability or capacity to parent. Based on the evaluation, Dr. LoBiondo concluded S.L.C. was an "untreated sex offender in need of sex offender treatment." In support of this conclusion, Dr. LoBiondo noted that S.L.C. denied her offense notwithstanding her conviction, manipulated her way through treatment, was found to have cognitive distortions indicating distorted beliefs, and admitted her current treatment was not addressing her sex offender issues. Dr. LoBiondo recommended S.L.C. participate in sex offender treatment, she seek employment so she could become independent, and she have supervised visitation with K.C.R. The psychologist explained that S.L.C.'s evaluation as being a sex offender of moderate risk was not based on a finding of pedophilic arousal but the evaluation created a concern that any children in her care would be negatively affected if she reoffended, sexually or not, after making a reattachment with her.
Caseworker Carter testified that, pursuant to Dr. LoBiondo's 2008 assessment, DYFS referred S.L.C. to multiple therapists, Dr. Carlin, Dr. Silikovitz, and Dr. Johnson. However, S.L.C. cancelled appointments, missed appointments, ...