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New Jersey Division of Youth and Family Services v. J.M.E. and R.J.N.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 22, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.M.E. AND R.J.N., JR. DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF C.M.N., K.N.N. AND R.J.N., III, MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-35-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2011

Before Judges Messano, Yannotti and Espinosa.

In these consolidated appeals, J.M.E. and R.J.N., Jr. (collectively, defendants) each appeal from an order that terminated their parental rights. We affirm.

I

These matters concern the three youngest of J.M.E.'s six children, C.M.N. ("Carly"), born November 6, 2001,*fn1 K.N.N. ("Kristy"), born January 3, 2003, and R.J.N., III ("Roy"), born June 21, 2006. R.J.N., Jr. is the father of Carly and Kristy. Roy's biological father is unknown.

The Division of Youth and Family Services (DYFS) filed a verified complaint for care and supervision of all six of J.M.E.'s children in November 2006.*fn2 On December 27, 2006, DYFS effected an emergency "Dodd" removal of the children pursuant to N.J.S.A. 9:6-8.29, after the police reported an apparent suicide attempt by J.M.E. The court appointed a law guardian and placed the children in the custody, care and supervision of DYFS. The court made appropriate orders to evaluate and address the apparent needs of defendants, i.e., psychological evaluations, compliance with substance abuse treatment and parenting education, and conducted hearings on various dates from December 2006 through September 2007, on the order to show cause.

After living in a series of foster homes, Carly, Kristy and Roy were placed with R.J.N., Jr.'s cousin and his wife, S.V. and C.V. (collectively, the V.s), in February 2007. They continue to reside with them, and the V.s have expressed their desire to adopt the children.

On March 28, 2008, DYFS filed a complaint for guardianship of Carly, Kristy and Roy, seeking to terminate the parental rights of J.M.E., R.J.N., Jr., and the unknown father of Roy. The matter was tried on fifteen days between January 26, 2009, and July 24, 2009. During the course of the trial, DYFS and the Law Guardian presented the expert testimony of James Loving, Psy.D., and Ronald Gruen, Ed.D., respectively. Neither J.M.E. nor R.J.N., Jr. presented the testimony of an expert psychologist.

On October 30, 2009, the court issued a comprehensive written decision, finding that DYFS had proven its case by clear and convincing evidence. A judgment of guardianship was entered that same day terminating the parental rights of J.M.E. and R.J.N., Jr. to the three children.*fn3

II

N.J.S.A. 30:4C-15.1(a) authorizes DYFS to petition for the termination of parental rights in the "best interests of the child" if the following standards are met:

(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.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[,]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

The trial court carefully considered each of these prongs and cited adequate, substantial evidence in the record to support its conclusion that each had been proven by clear and convincing evidence. In a comprehensive written opinion, the trial court detailed the facts pertaining to the family history here and DYFS's involvement which need not be repeated here. We summarize the salient facts.

A

The first prong of the analysis requires a determination whether the child's health, safety or development has been endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1); In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).

DYFS received its first referral regarding these defendants in February 2006, when a call to its hotline reported that J.M.E.'s three older children had missed significant amounts of school. J.M.E. told the DYFS responders that her oldest son, "Warren," was missing school because he had cluster headaches and would be home schooled and also because she had cancer and was receiving treatment at Jefferson Hospital. DYFS did not substantiate abuse or neglect. However, it is now undisputed that J.M.E. did not have cancer; she was not receiving treatment at Jefferson Hospital; and Warren was not being home schooled.

The first substantiated allegation against defendants was made following Roy's birth in June 2006, when he tested positive for cocaine. He remained hospitalized for approximately two months while his severe withdrawal symptoms were treated.

J.M.E. tested positive for cocaine at the time of Roy's birth and continued to abuse drugs during Roy's hospitalization, testing positive for both cocaine and opiates in July and August 2006. She visited him in the hospital only two times.

Warren, sixteen years old at the time of the hearing, testified that J.M.E. used drugs almost every day. She lied to the children, telling them that she had cancer and that the drugs were for her cancer. She brought the children when she went to buy crack, making them hide in the trunk of her car. Warren testified that when J.M.E. snorted crack, she was up for days and then would sleep for a week or more when she crashed. He was in charge of the other children, taking money from R.J.N., Jr.'s wallet to buy food. He stated that sometimes there was not enough food and he was accustomed to being hungry but worried about the younger children. After J.M.E. and R.J.N., Jr. split up, J.M.E. left the children alone for three or four days at a time and Warren had no way to contact her. Warren further stated that he did not attend school for over two years, that his brother and sister missed almost as much school, and that J.M.E. had lied when she told the school he was being home schooled.

Warren also described a domestic situation with unsanitary conditions in which the children slept on the floor and J.M.E. and R.J.N., Jr. were frequently violent with each other. On at least one occasion, R.J.N., Jr. injured Warren by hitting him in the face. Warren also testified that there were several occasions when R.J.N., Jr. hit Carly and Kristy "really, really hard, to where he hit [Kristy] and lifted her off the ground and like, she flew[.]" Warren stated that R.J.N., Jr. got up at 4:00 a.m., went to work, returned at 11:00 p.m., and went to bed. He said that R.J.N., Jr. never gave him money or checked to see if there was food in the house and did not pay attention to the children on the weekends.

Carly, then six years old, corroborated Warren's description of life with J.M.E. and R.J.N., Jr. She stated that J.M.E. and R.J.N., Jr. did not take care of her. Carly got upset as she described life with them to the court: "They shouldn't have put us in that dirty hotel. They just like, they make us cry with no food at the house . . . ."

A hearing was scheduled on November 2, 2006, following DYFS's complaint for care and supervision of the children. R.J.N., Jr. did not attend. When J.M.E. was arrested as she left the courtroom on outstanding warrants for drug possession and traffic offenses, a DYFS case worker went to the family home where she found the children, including four-month-old Roy, alone. R.J.N., Jr. was contacted but refused to leave work, telling the DYFS worker that the children were fine left alone until he came home. A report of inadequate supervision was substantiated.

There was also testimony regarding DYFS's response following an anonymous call on November 30, 2006. The case workers found the apartment where J.M.E. was living with the children to be unclean, that the children had lice and the pets had fleas. The anonymous caller had stated that J.M.E. had been asking neighbors for money and had been observed passed out in her car. J.M.E.'s explanation was that R.J.N., Jr. had walked out two days earlier without leaving them any food or money.

Although R.J.N., Jr. claimed he was unaware that J.M.E. was abusing drugs, the trial court stated that, after living with J.M.E. and the children for a period of time and Roy's drug-impacted birth, he should have been aware of her drug abuse and neglect of the children. The court concluded that, due to his "very disturbing" indifference, he shared in the harm caused by J.M.E.

In short, there was ample evidence to support the trial court's conclusion that J.M.E. had harmed Roy by abusing drugs during her pregnancy, see K.H.O., supra, 161 N.J. at 349, and had harmed the other children "by leaving them alone for days at a time, by not providing them with food, not ensuring minimal school attendance, and by putting them into the trunk of the car when she made drug purchases in Camden." There was also clear and convincing evidence that R.J.N., Jr. had harmed the children, most particularly through his abandonment of any responsibility to assure that they were adequately fed, housed and cared for. See In re Guardianship of D.M.H., 161 N.J. 365, 380-81 (1999).

B

The second prong of the best interests analysis requires a determination whether the parent is unwilling or unable to eliminate the harm to the child. N.J.S.A. 30:4C-15.1(a)(2); K.H.O., supra, 161 N.J. at 347. In addition, we must consider "whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 507 (2004) (quoting N.J.S.A. 30:4C-15.1(a)(2)).

For J.M.E. to eliminate the harm she poses to the children, it was necessary for her to address psychiatric issues as well as her drug abuse. As the trial court detailed in its written opinion, J.M.E. was initially resistant to addressing these issues. A change came about in 2007. While incarcerated that summer, she attempted to hang herself. She was transferred to a mental illness/chemical abuse (MICA) program and remained in that program under a detainer until her discharge in September 2007. Her discharge diagnosis was major depressive disorder, post-traumatic stress disorder, and opioid dependence. It was recommended that she continue MICA care and participate in self-help programs.

After her treatment at MICA, J.M.E. completed parenting classes, submitted to psychological evaluations, had negative drug screenings, participated in therapeutic visitations with her children and attended court proceedings. However, she failed to follow up on the substance abuse treatment she received and did not complete a recommended intensive outpatient program. The trial court noted the absence of any documentation that J.M.E. was currently participating in Narcotics Anonymous or a similar support group.

R.J.N., Jr. was referred twice for substance abuse evaluations and was also recommended to participate in a Level I treatment program. He did not attend alcohol education treatment.

Both J.M.E. and R.J.N., Jr. demonstrated improvement in their visits with Carly and Kristy.*fn4 The therapists who supervised visitation described defendants as making a good-faith effort to cooperate and making steady progress in their interactions with the children. However, Carly and Kristy frequently complained that they did not want to visit J.M.E. because they were afraid they would have to return to her. It was reported that, even though they appeared to warm up to J.M.E. and R.J.N., Jr. at the visits, they regressed to disturbing behaviors afterward.

Unfortunately, defendants' efforts to address the cause of the harm to the child came late. As the trial court observed, defendants "allowed their children to languish in foster care for over two and a half years. During the first ten months after placement, almost nothing was done by the parents to advance reunification."

Moreover, both Dr. Loving and Dr. Gruen testified that there was a poor prognosis for a safe return of the children to defendants since neither was ready to resume care of the children. One of the impediments to a better prognosis was the fact that both defendants consistently downplayed their past parenting deficiencies and were unwilling to take responsibility for the harm their past behavior caused the children. Dr. Loving stated:

Even though [J.M.E.] has made notable changes in two key areas (i.e., establishing drug abstinence and establishing stable housing, both for nearly a full year, as of this evaluation), she continues to avoid full responsibility for her past parent-child difficulties. As a result, she remains at risk for carrying out the same sorts of unhealthy parenting in the future.

He noted that it was a particular concern that J.M.E. was convinced that the children's distress and negative memories of their earlier home life were the product of coaching by extended family members rather than memories based in reality.

Following his evaluation of R.J.N., Jr., Dr. Loving stated the evaluation raised two main areas of concern:

First, his persistent non-compliance with substance-abuse-related services has made it impossible for professionals to rule out an alcohol abuse problem. . . . Second, because of [R.J.N., Jr.'s] unwillingness to take personal responsibility for his children's difficulties, he is not expected to help them transition into his care in a way that is emotionally safe. His daughters in particular are expected to suffer from adjustment problems if they are moved back to their parents' care, and those problems are expected to be magnified by both parents' attitudes toward this situation.

Even if this latter issue could be addressed in some form of treatment . . ., [R.J.N., Jr.] has a dismal prognosis for agreeing to that sort of treatment and then complying with it, much less benefiting from it in the foreseeable future.

Similarly, Dr. Gruen acknowledged J.M.E.'s accomplishment in "not abusing [drugs] at this time" but stated that J.M.E. "does not recognize the damage that she had caused her children[,]" showing "little concern for what the children have been through" and "project[ing] anger and blame onto other institutions such as the Division for further aggravating her lifestyle." He also concluded that, although test results indicated that R.J.N., Jr. was not "emotionally disturbed or unfit to parent[,]" he was "indifferent, insensitive, and in denial with regard to his responsibilities other than the fact that he has to pay child support" and "showed very little empathy as to the effects of the abuse and neglect upon the children."

Thus, in addition to being belated, defendants' efforts fell short of eliminating the harm caused by their parenting deficiencies.

In the interim, the children formed a strong bond with their foster parents. Roy, who was placed with the V.s when he was eight months old, has only a weak attachment to J.M.E. Dr. Douglas Crawford, a psychologist retained by DYFS to conduct therapeutic visitations, observed a growth in attachment and trust between defendants and the children. However, Dr. Gruen saw only "an acquaintanceship relationship between the children and their parents."

The record provided adequate, substantial, and credible evidence that defendants' inattention to the children and failure to timely address their own deficiencies were major contributing factors to the formation of strong bonds between the children and their foster parents. As the trial court observed, the failure to remedy the situation in a timely fashion implicates two forms of cognizable harm to the children: the severing of a relationship with the V.s, and the further delay in permanent placement until such time as defendants may be ready to provide a safe home for the children. See D.M.H., supra, 161 N.J. at 383; In re Guardianship of J.C., 129 N.J. 1, 17-19 (1992). We are satisfied that the record supports the trial court's conclusion that DYFS presented clear and convincing evidence to satisfy this prong.

C

The third prong of the best interests test requires DYFS to undertake reasonable efforts to reunite the family by providing assistance to the parent to correct and overcome those circumstances that necessitated placement of the child into foster care. K.H.O., supra, 161 N.J. at 354. As the trial court noted, defendants were provided "an extraordinary level of services" that included "four separate, comprehensive, therapeutically-supported visitation programs[.]" DYFS provided substance abuse evaluations and treatment recommendations. When J.M.E. was threatened with homelessness and had no money for food, DYFS caseworkers explained the process for applying for social services, took her to apply for assistance and, when she never completed an application or otherwise followed through, the workers helped her move into a motel. There is no indication that DYFS failed to take any reasonable step to provide appropriate services to defendants.

The thrust of defendants' challenge to the sufficiency of evidence regarding the third prong is an argument that kinship legal guardianship (KLG) pursuant to N.J.S.A. 3B:12A-1 to -7, was an appropriate alternative to the termination of their parental rights. This alternative is available when DYFS exercised reasonable but unsuccessful efforts to reunify the child with the birth parents; (b) "adoption of the child is neither feasible nor likely[,]" N.J.S.A. 3B:12A-6(d)(3); and "awarding kinship legal guardianship is in the child's best interests." N.J.S.A. 3B:12A-6(d)(4); see also N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 223 (2010).

Therefore, when adoption is feasible and likely, the statute does not authorize the court to establish a KLG.

Nevertheless, the trial court considered KLG as an alternative to termination of defendants' parental rights. The court noted that defendants did not indicate any willingness to consent to a KLG with the V.s. Defendants did not acknowledge that the children would benefit from the stability and permanence of a KLG relationship with the V.s or that continued challenges to that guardianship would be harmful to them. Further, the court provided five examples of allegations J.M.E. made regarding the V.s' care of the children that were "simply not credible."

In considering KLG, the court observed that both Dr. Loving and Dr. Gruen thought that the termination of a relationship with defendants would be a loss that would cause some harm to the children. Both experts also agreed that the relationship between defendants and the V.s was contentious and distrustful and that continued litigation and challenges to guardianship would cause further harm to the children. Based upon all the circumstances, the trial court accepted Dr. Loving's opinion that a KLG was not feasible here.

We are satisfied that clear and convincing evidence was presented to meet the third prong and that the trial court correctly determined that KLG was not appropriate here.

D

The fourth prong of the best interests test requires a determination that termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4).

In his report, Dr. Loving stated

[A]ll 3 children (particularly [Carly] and [Kristy]) would be placed at high risk for emotional harm[] if they were removed from their current caregivers and transitioned back into [J.M.E.'s] and/or [R.J.N., Jr.'s] care. For all three children, the best prognosis for long-term emotional health would be fostered by allowing them to remain in their current home and to establish a sense of permanency there.

As previously noted, he also stated that defendants required continued services before there could be reunification and that they both had a poor prognosis for compliance. Even if their efforts were successful, the children would grow still more attached to their current caregivers during the resulting delay. Dr. Loving therefore concluded "all three children would be best served by moving toward permanency in their current home at this time." Although he described Carly's attachment to defendants as moderately strong and Kristy's attachment as strong, he also stated the attachments were ambivalent. It was his "strong opinion" that their attachment and mental health needs would be best served by adoption by the V.s. As for Roy, Dr. Loving concluded that he would be "at risk for suffering longstanding emotional harm" if separated from the V.s and at "low risk" for such harm if he stopped having contact with defendants.

Similarly, Dr. Gruen stated:

[T]he children still have special needs and it is clear that the [V.s] are committed to meeting them. [R.J.N., Jr.] and [J.M.E.] do not even know what they are.

There is a strong psychological bond between the foster parents and the foster children. Especially given the children's vulnerabilities and special needs, they would likely suffer significant emotional harm if removed from this home.

We are satisfied that the fourth prong was met by clear and convincing evidence.

III

In addition to challenging the sufficiency of the evidence to satisfy N.J.S.A. 30:4C-15.1(a), J.M.E. and R.J.N., Jr. argue that the trial court erred in limiting the testimony of Dr. Crawford. J.M.E. also argues that the trial court undermined her due process right to an attorney whose loyalty was undivided and unhampered by dual representation concerns. For the first time on appeal, R.J.N., Jr. also argues that he was denied procedural due process because the court failed to appoint counsel for him. After carefully reviewing the record and briefs, we are satisfied that none of these arguments has sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

A

Although J.M.E. retained Dr. David F. Bogacki as an expert, she ultimately decided not to call him as a witness. His preliminary report was entered into evidence, however, and revealed opinions similar to those of Drs. Loving and Gruen, i.e., that "[a]ll three children appear to have a stronger attachment to their foster parents, who are currently their psychological parents."

J.M.E. subpoenaed Dr. Crawford to testify as a defense witness. Dr. Crawford was not retained by DYFS or defendants to conduct a bonding evaluation or to render an opinion regarding the termination of parental rights. The reports he prepared that were disseminated in discovery related to his supervision of the therapeutic visitations. Dr. Crawford filed a motion to quash the subpoena, arguing that he should not be forced to testify without being paid for his time. The court conducted a N.J.R.E. 104 hearing, denied the motion to quash, and ruled that Crawford was a fact witness who could be questioned concerning the interactions among J.M.E., R.J.N., Jr., and the children at the visitations. He could not, however, be asked to render an opinion on the statutory elements of termination of parental rights. Thereafter, Dr. Crawford provided testimony regarding forty-five visits he supervised that was generally favorable to defendants.

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. Of Clinton v. Zoning Bd. of Adjustment of Clinton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, the trial court's ruling will not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). We discern no abuse of discretion in limiting Dr. Crawford's testimony to the matters contained in his reports or in the court's denial of J.M.E.'s request - during trial - that he conduct a bonding evaluation.

B

Both defendants did not appear for a number of scheduled trial dates. Some of these absences were "excused" by the court and, although there is no documentation in the record regarding defendants' medical conditions, the trial court accepted the representations that J.M.E. was hospitalized on the first day of trial for undisclosed reasons and that R.J.N., Jr. was diagnosed with metastatic prostate cancer, requiring surgery, during the trial. In an effort to balance the interests of the children in proceeding with the trial with those of defendants, the court denied R.J.N., Jr.'s request for a three-month adjournment, arranged for tapes of the proceedings to be made available to defendants and advised that defendants would be permitted to recall witnesses.

Neither defendant challenges the procedure adopted by the court on appeal, and R.J.N., Jr. does not appeal the denial of his adjournment request. J.M.E. argues that her right to counsel was compromised by the fact that the court asked her attorney, over his objection, to communicate with R.J.N., Jr., who was pro se, regarding the proceedings. Although it was inappropriate for the trial court to ask her attorney to do so, there is no indication that J.M.E. was prejudiced by this procedure in any way. Throughout the proceedings, her attorney repeatedly reminded the court that R.J.N., Jr. was unrepresented and that he only represented J.M.E. He did so without any evidence of divided loyalty. Therefore, we are satisfied that this argument lacks merit.

C

Finally, R.J.N., Jr. argues that the court erred in failing to assign counsel for him. "In any action concerning the termination of parental rights[,]" N.J.S.A. 30:4C-15.4(a) provides as follows:

If the parent appears before the court, is indigent and requests counsel, the court shall appoint the Office of the Public Defender to represent the parent.

There are two essential prerequisites to the appointment of counsel that are absent in the record before us: evidence that R.J.N., Jr. was indigent and that a request for counsel was actually made. In the absence of a record that such a request was actually made to the trial court, this argument is not properly before us.*fn5 State v. Robinson, 200 N.J. 1, 20 (2009). If, indeed, R.J.N., Jr. was indigent and denied counsel, there could be a basis for considering whether the failure to appoint counsel was "clearly capable of producing an unjust result[.]"

R. 2:10-2. However, since there is no evidence in the record that R.J.N., Jr. ever claimed to be indigent or presented any evidence of indigency, no further consideration of this argument is warranted.

Affirmed.


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