October 19, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
E.C.H. A/K/A C.E.H. A/K/A E.C.H.-W., DEFENDANT-APPELLANT, AND A.P., R.P., AND J.R., DEFENDANTS. IN THE MATTER OF THE GUARDIANSHIP OF A.H. AND I.H.R., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-188-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges Parrillo, Grall and Alvarez.
Defendant E.C.H. appeals the October 18, 2010 Family Part judgment terminating her parental rights to I.H.R., born March 10, 2001, and A.H., born October 13, 2002, pursuant to N.J.S.A. 30:4C-15(c) and -15.1. For the reasons that follow, we affirm.*fn1
Care, custody, and supervision of I.H.R., A.H., and I.A.T.,*fn2 a third child not involved in this appeal, were initially granted to the Division of Youth and Family Services (the Division), on September 17, 2007. The children were then placed in a Division-approved resource home. At an October 31, 2007 fact-finding hearing, the court found by clear and convincing evidence that E.C.H. abused or neglected the children as a result of her failure to provide them with adequate and proper supervision, and the children's out-of-home placement was continued. The Division also continued to pursue reunification efforts. In fact, on September 3, 2008, following a permanency hearing, the Division obtained an extension on their plan to reunify the family because, as the judge explained, E.C.H. should be granted additional time "to secure housing and stable income."
After a second permanency hearing conducted six months later, however, on February 26, 2009, the court entered an order approving the Division's plan to terminate parental rights because E.C.H. had not secured adequate housing or meaningfully engaged in therapy, and was "unable to protect [all three] children from their sexualized behaviors." Accordingly, the Division filed a complaint for guardianship. The trial was conducted on October 4, 12, and 18, 2010. E.C.H. did not present any evidence. The court rendered its decision terminating parental rights from the bench.
The Division presented the following relevant family history during the trial, beginning with a referral in August 2005, that the children had been left home alone. That referral was not substantiated.
On June 5, 2007, however, a Newark police officer, who went to E.C.H.'s home regarding an investigation unrelated to her or her family, discovered the children home without adult supervision. As a result, E.C.H. signed an agreement with the Division to ensure the children were properly supervised. On September 12, 2007, the Division received a second referral, this time from the East Orange Police Department, that the children had been found home alone when the authorities were attempting to locate a runaway juvenile. An emergency removal followed.
The children were placed in the home of E.C.H.'s family friends. A psychological evaluation of E.C.H. was ordered, and Dr. Leslie A. Trott recommended individual counseling for at least six months in order to assist E.C.H. in understanding the impact the stressors in her life were having on her ability to respond to her children's needs. E.C.H. was referred to a community mental health agency, Final Stop, to participate in parenting skills classes and individual counseling.
At the October 31, 2007 fact-finding hearing, the court determined by clear and convincing evidence that E.C.H. had abused or neglected her children by failing to provide them with adequate and proper supervision. She was ordered to participate in services, including parenting classes. E.C.H. did not complete the parenting program until March 12, 2008, nor did she comply at all with individual counseling or cooperate with home health aide services.
On February 12, 2008, the Division received referrals about I.H.R. and A.H. from psychologists, Dr. Scott Poltrock and Dr. Karen Smarz, as a result of A.H.'s allegation that E.C.H. had physically abused her, and coincidentally, I.H.R.'s allegation of physical abuse by her foster parents. Although the Division could not corroborate the children's allegations, the children were nonetheless provided additional mental health services.
In the opinion of I.H.R.'s treatment provider, it was possible that she had been the victim of inappropriate sexual behavior and physical abuse. She was referred to group therapy, and E.C.H. was again referred to family therapy in order to expedite a reunification plan.
In April 2008, when E.C.H. commenced counseling, she acknowledged having been laid off from her partial employment at the postal service three months earlier, that she was not receiving unemployment benefits, and that she had been denied welfare and temporary rental assistance. The following month, Final Stop issued a report stating that E.C.H. was putting a considerable amount of effort into completing her court-ordered tasks and had again secured full-time employment. Unfortunately, E.C.H. fell behind in her rent, and by August 2008 was homeless.
On September 26, 2008, E.C.H. attended a second psychological evaluation with Dr. Denise M. Williams-Johnson. She had concerns regarding E.C.H.'s truthfulness and minimization of responsibility. Dr. Williams-Johnson concluded that E.C.H. had not learned from her experiences and had difficulty empathizing with her children. Based on information provided by E.C.H., she was also concerned that E.C.H. might have brain cancer which was affecting her cognitive functioning and recommended that E.C.H. submit to a neuropsychological evaluation. E.C.H. later admitted that she had overstated her health issues to Dr. Williams-Johnson.
During the months that followed, E.C.H. continued to intermittently participate in counseling, with mixed results. She represented to the court that she had obtained employment, but only produced one pay stub.
In the interim, the children had been removed from the friends' home and placed with a licensed resource provider. On September 27, 2008, the Division was notified by the foster family that I.H.R. had been found on top of her foster brother, engaging in sexual behavior. When asked about the incident, I.H.R. explained, among other things, that A.H. had engaged in similar activities.
When first questioned about whether the children had engaged in sexually inappropriate behavior on prior occasions, E.C.H. stated that when the family lived in North Carolina she "had a feeling" that her grandfather might have sexually abused
I.H.R. She never confirmed her suspicions.
Weekly visitation monitored by Tri-City Peoples Corporation commenced in October 2008. E.C.H. did not attend consistently.
A.H. was interviewed on November 24, 2008, and acknowledged that she had witnessed inappropriate sexual interactions. She was referred for individual therapy at Newark Beth Israel's Metropolitan Regional Child Abuse Diagnostic and Treatment Center (RDTC).
At a group therapy session on December 10, 2008, I.H.R. disclosed two instances of sexual victimization. When E.C.H. was questioned about these claims on December 11, 2008, she denied that her children had ever been sexually abused.
Two days later, the children's foster father reported that I.H.R. had engaged in sexually inappropriate conduct with his niece and had told her not to disclose the incident. I.H.R., as a result, was removed from that home and placed in a therapeutic foster home, where she remains.
On December 31, 2008, I.H.R. admitted to her Final Stop therapist that she had sexually victimized her foster brother and that her biological brother, I.A.T., had sexually abused her. When interviewed, I.A.T. acknowledged multiple sexual contacts between him and his sister I.H.R. while the children lived with E.C.H. I.A.T. ascribed the onset of sexual activity to the siblings watching a pornographic video his mother and some of her friends were viewing. He also stated he witnessed I.H.R. and A.H. engaging in inappropriate sexual conduct.
I.H.R. later reported that, while residing with E.C.H., she and her siblings encountered her mother doing "adult things" with a male visitor. As a result of these multiple disclosures, additional services were extended to I.H.R.
Despite being informed of these developments, E.C.H. refused to believe that her children had been involved in sexually inappropriate behavior. On February 26, 2009, a permanency order was signed approving the Division's plan for termination of E.C.H.'s parental rights.
On June 3, 2009, E.C.H. completed a neuropsychological evaluation with Dr. Andrew Brown. He opined she was unlikely to engage in effective problem solving because of poor verbal auditory processing skills, as well as other neuropsychological impairments. As Dr. Brown saw it, E.C.H. would have significant difficulty parenting without support or assistance.
Two days later, the Division received another referral regarding I.H.R. sexually molesting another child. As a result, I.H.R.'s foster parents were required to closely supervise her. On June 23, Tri-City terminated E.C.H.'s individual therapy as a result of noncompliance. On August 21, 2009, E.C.H. was terminated from supervised visitation because she missed three consecutive visits.
On August 6, 2009, E.C.H. told the trial judge at a case management hearing that while the children were in her custody, she returned home on one occasion to find I.A.T. and I.H.R. watching a pornographic film. She "took care of [I.A.T.]" and "beat both [I.A.T. and I.H.R.]. I sure did. I beat both of them -- when I got home from work." She also testified that she had obtained Section 8 housing in North Carolina and requested that the case be transferred to that state, claiming that her apartment would be ready for her to move into within two weeks.
Despite Tri-City's termination of E.C.H. from services because of noncompliance, the Division nonetheless referred E.C.H. for therapeutic supervised visitation and individual counseling with another provider. Supervised visitation with I.H.R. began anew in September 2009. Visitation did not resume with A.H. until late November 2009, because E.C.H. was incarcerated for two to three weeks in October.
E.C.H. continued to attend court-ordered therapy sporadically and to experience difficulty engaging in treatment, while simultaneously reiterating her commitment to obtain adequate housing so that her children could be returned to her. She was consistently either late for scheduled appointments or failed to appear at all without calling to cancel.
Dr. Eric Kirschner conducted bonding evaluations in early 2010. He opined that A.H.'s conduct towards her mother displayed an oppositional and defiant quality and that they did not relate in the manner commonly observed between a securely attached child and a parental attachment figure. Dr. Kirschner concluded that severing the relationship between A.H. and E.C.H. would not likely result in serious and enduring psychological harm to the child.
Dr. Kirschner's bonding evaluation of A.H. and her foster parents established that while A.H. would experience a sense of loss and sadness if E.C.H.'s parental rights were terminated, that harm would not be serious or enduring. Furthermore, her secure and healthy attachment to her foster family would enable her to cope with the sense of loss she might suffer as a result. He contrasted that outcome with his concern that A.H. would suffer greater harm if she were removed from the care of her foster family, harm which would be serious and enduring, because she viewed them as her psychological parents. A.H. did not have the alternate secure attachment to E.C.H. which would make it possible for her to absorb the loss.
On February 4, 2010, when Dr. Kirschner conducted a bonding evaluation of I.H.R. and her foster parents, he observed that I.H.R. and her foster family interacted in the manner common between securely attached children and appropriate parental attachment figures. Consequently, Dr. Kirschner opined that if this relationship were severed, I.H.R. would experience serious and enduring psychological harm.
On June 17, 2010, Dr. Kirschner conducted the bonding evaluation as to E.C.H. and I.H.R. I.H.R. had a bond with her mother, however, Dr. Kirschner assessed it as having an ambivalent nature.
On June 15, 2010, the Division arranged for E.C.H. and her children to become involved in therapeutic supervised visitation. These visits were to take place weekly, two hours each week. By September 20, 2010, due to E.C.H.'s cancellations and a supervisor's vacation, only five sessions had been conducted between June 15 and September 14, 2010. The visit supervisor noted the attachment between children and mother.
By August 2010, E.C.H. had still not arranged suitable housing for herself and the children, and was in fact residing in a household with family and two unrelated adults who were not committed to assisting her in obtaining custody of the children. In sum, after three years, E.C.H. still had neither employment nor a home to offer the children.
Two Law Guardians were assigned to independently represent I.H.R. and A.H. A.H.'s Law Guardian scheduled bonding evaluations with Dr. Elayne Weitz in June 2009 and September 2010. Dr. Weitz testified at trial that she not only interviewed E.C.H., she also administered standard psychological tests and interviewed A.H. alone.
It was Dr. Weitz's opinion that E.C.H. could not remedy the factors that resulted in the children's initial removal. E.C.H. continued to experience difficulties with unstable housing, periods of actual homelessness, and unemployment. The small gains she occasionally exhibited as a result of her intermittent engagement with services were offset by her dependence on others, both financially and emotionally. In Dr. Weitz's opinion, E.C.H.'s inability to maintain secure housing, or employment, put her children at risk of neglect and homelessness.
Dr. Weitz's bonding evaluation of A.H. and her foster parents indicated as a threshold matter that A.H. had enjoyed a stable and nurturing home life with them for almost two years.
Dr. Weitz found it noteworthy that the foster family was willing to allow A.H. to maintain contact with her birth family, particularly her siblings. She opined that whether or not this contact actually continued, termination of E.C.H.'s parental rights would not cause A.H. severe and enduring harm. Furthermore, A.H.'s strong bond with her foster family would mitigate any sense of loss or sadness she might suffer as a result of the termination of E.C.H.'s parental rights.
Were A.H. to be removed from her foster family, however, the results would be emotionally devastating. E.C.H. would not be able to mitigate this harm, as A.H. did not entirely trust her mother, and they were not truly bonded. A.H. did not perceive her mother as someone she could rely upon when in distress.
At the outset of his decision, the Family Part judge found that the Division had established proof by clear and convincing evidence sufficient to meet the four prongs of the statutory test. See N.J.S.A. 30:4C-15.1(a). Taking into account the two prior adjudications of abuse and neglect, he concluded that the first prong was met by E.C.H.'s neglect and lack of supervision of the children while she worked. He explained that although E.C.H. had made efforts to comply with services, the results did not demonstrate that the "harm and danger to the children has been attenuated."
As to the second prong, the court observed that E.C.H. had been unable in more than three years to either find stable housing or a job. Despite her partial compliance with services and early successful completion of a parenting program, she simply did not show "any substantial or meaningful change" or demonstrate any change whatsoever over the course of three years which would make her a more suitable parent, able to offer her children a stable, safe, and secure home. This he contrasted with the children's current lives: the children are in "stable home environments where they're loved, cared for, nurtured, have permanency and their needs are being taken care of. Probably for the first time in their lives by their caretakers."
The Division had consistently proffered "a laundry list of services" with which E.C.H. had only partially complied, thereby satisfying prong three. Despite intermittent involvement, the judge concluded E.C.H. did not engage in services to the extent necessary in order to effectuate meaningful change.
In the trial judge's view, the more difficult question was whether the Division had satisfied the final prong of the statute, whether termination of parental rights would do more harm than good. The trial judge acknowledged the experts' opinion that the children had a relationship with E.C.H. and looked forward to visits. He went on, however, to rely upon the psychologists' uncontroverted testimony that the children's need for permanency will only be fulfilled by adoption. Although the children will no doubt experience some setbacks as a result of the termination of their relationship with their mother, he said "the potential benefits involved . . . far outweigh any small loss that might be on a temporary basis." The children were thriving in their placements and recovering from the emotional harm that they experienced while residing with their mother. Therefore he ultimately concluded that the final prong had also been met by clear and convincing evidence.
On appeal, E.C.H. alleges the court committed errors as follow:
POINT 1 - THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A JUDGMENT TERMINATING E.C.H.'S PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY N.J.S.A. 30:4C-15 AND 30:4C-15.1 POINT 1(A) - THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING [HER CHILDREN] OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR [HER CHILDREN] AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM UNDER THE SECOND PRONG POINT 1(B) - THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF E.C.H.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD Pursuant to statute, parental rights can be terminated only when the State proves that:
(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).]
Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" 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)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003), aff'd and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Moreover, consideration of the four prongs of the statutory test must be made as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
"Clear and convincing" evidence is evidence which results in a firm belief or conviction as to the truth sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record overall that the Division met the statutory test by such evidence.
On appeal, E.C.H. focuses her claims of error on the Division's purported failure to satisfy the second and fourth prongs of the statutory test. We agree with the trial court that E.C.H. is unwilling or unable, despite her stated good intentions, to eliminate the harm that caused the children to be removed in the first instance, and is unable or unwilling to provide them with a safe and stable home. In three years E.C.H. has not obtained safe and secure housing or employment, or even regularly visited with her children.
There is also a substantial question as to whether E.C.H. understands that I.H.R. has sexually molested her sister A.H. and others. E.C.H. refuses to believe that her children may have been victimized and become victimizers, and does not understand that the problem requires substantial and sensitive attention. It is not likely that E.C.H. would ever be able to appropriately address the children's significant emotional needs in this area alone, separate from her inability to provide them with a roof over their heads.
That termination of parental rights will benefit the children, doing them more good than harm, was well-established by the bonding evaluations. Although the children will undoubtedly experience a loss, it can be addressed by their respective foster families, with whom both children are securely bonded. These children will have a better recovery from the loss of E.C.H. than they would have from the loss of their foster families.
As has been previously said, "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).
"A final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). It is always a grave loss to a child to lose biological parents and it is for that reason "doubts are to be resolved against" disruption of the relationship. Id. at 16. But permanence, stability, and support for emotional growth are also crucial to a child's upbringing and must be taken into consideration. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986).
The Division established that E.C.H. could not provide the children with the stable, nurturing environment they require. The Division also established that termination would not do more harm than good. We therefore agree with the trial judge that the State has met its statutory burden by clear and convincing evidence.