April 5, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF J.S.J.C., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FG-18-119-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Messano, Yannotti and Espinosa.
S.C. appeals from a judgment entered by the Family Part on March 25, 2011, terminating her parental rights to J.C.*fn1 and granting custody of the child to plaintiff, the Division of Youth and Family Services (Division or DYFS) so that he could be adopted by his foster parents. We affirm.
S.C. gave birth to J.C. on February 21, 2008. The child's biological father has not been identified. At the trial of this matter, S.C. stated that this was "none of [the Division's] business]." Before J.C. was born, the Division received a report that S.C. was pregnant and tested positive for illegal substances. At the time, S.C. was incarcerated in the county jail, after she was arrested and charged with assault upon a police officer.
Within weeks of J.C.'s birth, the Division received a report that S.C. was not caring for him appropriately. On March 17, 2008, the Division effected an emergency removal of J.C. from S.C.'s custody without a court order pursuant to N.J.S.A. 9:6-8.29. The Division determined that S.C.'s neglect of J.C. was substantiated because she failed to provide him with adequate shelter, used an illegal substance while caring for him, and acted recklessly by taking him to the home of her aunt, D.C., who had recently pled guilty to a drug charge and did not have custody of her own children. On March 19, 2008, the Division filed a complaint in the Family Part seeking care, custody and supervision of the child. The trial court granted the Division's application.
On March 28, 2008, S.C. was sentenced to three years of probation, conditioned upon service of 270 days in jail, and was required to perform seventy-five hours of community service, as a result of her convictions for third-degree aggravated assault and fourth-degree resisting arrest. The following month, J.C. was classified as a medically fragile child based on a neurological diagnosis. As a result of that diagnosis, J.C. was placed in a Special Health Provider Home.
S.C. was released from jail on July 23, 2008. On August 7, 2008, S.C. was arrested and charged with third-degree unlawful possession of a weapon, third-degree possession of a weapon for an unlawful purpose, and certain disorderly persons offenses. S.C. was released from jail on November 8, 2008. Several days later, J.C. was placed with the foster parents with whom he continues to live.
In January 2009, Dr. Alexander Iofin (Dr. Iofin) performed a psychiatric evaluation of S.C. During his evaluation, Dr. Iofin learned that S.C. had been treated at a psychiatric hospital from January 16, 2007 to January 26, 2007, when she was discharged to the county jail. The hospital's records detailed S.C.'s long history of aggressive behavior, poly-substance abuse, psychiatric problems, hallucinations, suicide attempts, self-injurious behaviors, and arson. While at the hospital, S.C. reported that she had been using drugs since she was twelve years old. She admitted that she had used cocaine, ecstasy, phencyclidine (PCP), marijuana, and alcohol.
Dr. Iofin diagnosed bipolar disorder with significant psychotic features and concluded that S.C. required treatment for substance abuse and her psychiatric problems. He found that S.C. could not "be considered as a minimally adequate parent for any minor child now or . . . through the year of 2009."
On February 9, 2009, S.C. was again arrested and charged with fourth-degree unlawful possession of a weapon and fourth-degree certain persons not to have weapons. S.C. later pled guilty to those charges and was sentenced to eighteen months of imprisonment.
On March 18, 2009, the trial court conducted a permanency hearing and approved the Division's plan to terminate S.C.'s parental rights to J.C., followed by his adoption. On May 1, 2009, the Division filed a verified complaint seeking the termination of S.C.'s parental rights. The protective services litigation was dismissed. The court conducted another permanency hearing on February 3, 2010, and again approved the Division's permanency plan to terminate S.C.'s parental rights.
The guardianship trial commenced on January 4, 2011. On March 25, 2011, the trial court issued a written opinion in which it concluded that the Division had proven by clear and convincing evidence all four prongs of the best interests standard enunciated in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 607 (1986), and thereafter codified in N.J.S.A. 30:4C-15.1(a).
The court found that the Division had established that J.C.'s safety, health and development had been harmed by his relationship with S.C. The court stated that J.C. was removed from S.C.'s care due in part to S.C.'s continued drug abuse. The court noted that, in the years that followed, S.C. failed to provide J.C. with a safe and stable home because of her incarcerations, continued substance abuse, and failure to meaningfully participate in and take advantage of the resources that the Division had provided. The court found that J.C.'s resulting inability to achieve permanency also constituted harm to the child.
The court further found that the Division had established that S.C. is unwilling or unable to eliminate the harm to J.C. and the delay in the child's permanent placement will cause further harm. The court noted that S.C. failed to participate in or complete services that the Division had provided, including substance abuse treatment, counseling, and parenting skills classes. The court pointed out that these services were needed to allow S.C. to adequately parent the child.
The court also noted that S.C. was incarcerated at the time of the guardianship trial, and she had been in jail for about one-half of J.C.'s life. In addition, the court stated that S.C. remained incapable of parenting the child. The court said that, upon her release from jail, S.C. would require various services.
The court additionally stated that S.C. would have to obtain suitable housing and employment. The court said that, while this occurred, J.C. would have to remain in foster care, where he had been since he was one month old. The court found that "it would be inappropriate for [J.C.] to continue in a state of uncertainty while waiting for [S.C.] to be able to care for him."
In addition, the court found that the Division had shown that it made reasonable efforts to address the causes for the child's removal from the home and had considered alternatives to termination of parental rights. The court stated that the Division had provided S.C. with an array of services to address her psychological and psychiatric problems, persistent drug use and inadequate parenting skills. The court found that the Division had considered alternatives to termination of parental rights, including placement of the child with family members.
The court additionally determined that the Division had shown that termination of S.C.'s parental rights would not do more harm than good. The court found that, in light of her substance abuse and mental health problems, S.C. would not be able to care adequately for J.C. now or in the foreseeable future. The court stated that J.C. was thriving in the care of his foster parents, who intended to adopt him, and there was no basis to delay a permanent placement.
The court entered a judgment dated March 25, 2011, terminating S.C.'s parental rights to J.C., and awarded guardianship of the child to the Division for purposes of adoption. S.C. appeals and raises the following arguments for our consideration:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT (Not Raised Below).
THE TRIAL COURT'S RULING SHOULD BE REVERSED BECAUSE DYFS FAILED TO PROVE THE STATUTORY ELEMENTS JUSTIFYING TERMINATION OF PARENTAL RIGHTS.
A. DYFS BREACHED ITS DUTY TO USE REASONABLE EFFORTS TO MAINTAIN A RELATIONSHIP BETWEEN PARENT AND CHILD.
1. DYFS FAILED TO CONSIDER AVAILABLE FAMILY PLACEMENT BECAUSE THE CASEWORKERS DID NOT KNOW THE DIVISION'S AGE REQUIREMENTS FOR FOSTER CARE.
2. DYFS FAILED TO EXERCISE DUE DILIGENCE AND MAKE REASONABLE EFFORTS TO ADDRESS THE PARENT'S MEDICAL PROBLEMS.
B. DYFS FAILED TO PROVE THAT THE DEFENDANT CAUSED HARM, AND IF SHE DID, THAT SHE IS UNABLE TO ELMINATE THE HARM.
C. WITH THE DIVISION'S REASONABLE EFFORTS, THE DEFENDANT IS WILLING AND ABLE TO ELIMINATE THE HARM.
D. THE DIVISION'S FAILURE TO EXERCISE DUE DILIGENCE IS RESPONSIBLE FOR ANY HARM ARISING FROM NOT TERMINATING PARENTAL RIGHTS.
THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF DUE TO THE APPEARANCE OF IMPROPRIETY (Partially Raised Below).
Parents have a fundamental constitutional right to raise their children. A.W., supra, 103 N.J. at 599. The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interest of the child" and the petition may be granted if the four criteria of the best interest standard codified in N.J.S.A. 30:14C-15.1(a) are established by clear and convincing on evidence.
The scope of our review in an appeal from an order terminating parental rights is strictly limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). We are satisfied that the record supports the trial court's findings of fact and conclusion that the Division had established by clear and convincing evidence all four of the prongs of the best interests standard in N.J.S.A. 30:4C-15.1(a).
The first prong of the best interests test requires the Division to prove that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:14C-15.1(a)(1). The Supreme Court has observed that a parent's withdrawal of his or her "solicitude, nurture and care for an extended period of time" is a "harm that endangers the health and development of a child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. 352-54). Moreover, a parent's incarceration may have a "disruptive and destabilizing effect on a child's life." In re Adoption of Children by L.A.S., 134 N.J. 127, 140 (1993).
The record shows that J.C. was removed from his mother's care when he was one month old due in part to her continuing substance abuse. The record also shows that S.C. failed to adequately care for J.C., and that the child remained in placement since March 2008 because S.C. was unable to provide him with a safe and stable home. We are satisfied that there is sufficient credible evidence to support the trial court's finding that J.C.'s safety, health and development were harmed by his relationship with S.C.
The second prong of the best interests standard requires the Division to establish that:
[t]he 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[.] [N.J.S.A. 30:4C-15.1(a)(2).]
This prong of the test focuses on the parent's fitness. D.M.H., supra, 161 N.J. at 379. The court must consider "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607.
The trial court found that S.C. would be unable to provide a safe and stable home for J.C. in the foreseeable future and the delay in a permanent placement will add to the harm. The record supports that determination. At the trial, Dr. Alan Gordon testified that, based on his psychological evaluation in 2010, S.C. was functioning in the mildly defective range of intelligence. Dr. Gordon said that S.C. lacked an understanding of what it means to be a parent and had poor emotional controls. The doctor opined that S.C. had ample time to demonstrate her ability to capably parent the child but she kept engaging in antisocial acts and continued to have difficulty controlling her emotions.
Dr. Gordon also evaluated the bonds between J.C. and S.C., and the bonds between J.C. and his foster parents. Dr. Gordon stated that it did not appear that J.C. had a bond with S.C. He observed that J.C. appeared to want to go to anyone except his birth mother. Dr. Gordon opined that J.C. did not have an attachment to S.C.
Dr. Gordon further testified that J.C. had a secure bond with his foster parents, who were meeting his needs. He opined that removal of J.C. from the foster home would be detrimental to his health and welfare. Dr. Gordon also opined that S.C. would not be able to remedy the harm that J.C. would suffer if he were removed from his foster parents.
The third prong of the best interests standard requires the Division to show that it "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." N.J.S.A. 30:14C-15.1(a)(3). The Division's efforts must be assessed on a case-by-case basis. D.M.H., supra, 161 N.J. at 393. Moreover, the Division's efforts are not "measured by their success." Ibid.
Here, the trial court found that the Division's efforts to address the circumstances that led to J.C.'s placement outside the home were reasonable. There is sufficient credible evidence to support that finding. The record shows that the Division provided S.C. with an array of services, including case plans, family team meetings, psychological and psychiatric evaluations, referrals to counseling, parenting skills training, substance abuse evaluations and parenting time. The record also shows that S.C. did not meaningfully participate in or complete the services offered. In addition, the record established that the Division considered alternatives to termination of S.C.'s parental rights.
The fourth prong of the best interests standard requires the Division to establish that termination of parental rights will not do more harm than good. N.J.S.A. 30:14C-15.1(a)(4). A child's need for permanency and stability are the "central factor" in this analysis. K.H.O., supra, 161 N.J. at 357. A child may not languish indefinitely in foster care "while a birth parent attempts to correct the conditions that resulted in out of home placements." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 202, 209 (App. Div.) (citing 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), certif. denied, 192 N.J. 293 (2007)).
In this case, the trial court determined that termination of S.C.'s parental rights would not do more harm than good. The court pointed out that the child had been removed from S.C.'s care when he was one-month old, and S.C. would not be capable of providing him with a safe and stable home in the foreseeable future. J.C. was thriving in the care of his foster parents and, in the court's view, there was no reason to delay a permanent placement. We are satisfied that there is sufficient credible evidence in the record to support these findings.
S.C. argues that the trial court's judgment should be reversed because the court erroneously shifted the burden of proof to her. S.C. contends that the trial court erred by presuming that the Division acted reasonably in ruling out her family members as potential relative placements for the child. S.C. maintains that, by deferring to the Division's decisions regarding these placements, the court erroneously placed the burden of proof on her to show that the Division's actions were arbitrary, capricious and unreasonable. We disagree.
Here, the Division's decisions regarding placement of J.C. with various family members was considered by the trial court as part of its determination as to whether the Division had proven the third prong of the best interests standard. As noted, that prong requires the Division to show that it considered alternatives to termination of parental rights. In its opinion, the court concluded that the Division had met its burden of proof on that prong with clear and convincing evidence. We are satisfied that, in reaching that decision, the court applied the appropriate legal standard and did not erroneously shift the burden of proof to S.C.
Next, S.C. argues that the trial court erred by finding that the Division considered alternatives to termination of her parental rights. She contends that the Division failed to consider her sister, A.C., as a relative placement for J.C. She maintains that the Division erroneously ruled out A.C. as a placement because its caseworker wrongly believed that it was necessary for a relative caregiver to be twenty-one years old, rather than eighteen.
At some point in 2008 or 2009, S.C.'s sister A.C. presented herself to the Division as a possible caretaker for J.C. The Division's workers apparently told A.C. that she had to be twenty-one years of age. However, as S.C. correctly points out, the Division's regulations only require that a relative caregiver be eighteen years of age.
The trial court noted that the Division had considered several of S.C.'s family members and, with the exception of A.C., they had all received "rule-out" letters. The court stated that it had not been established that A.C. was eighteen years old when she asked to be considered as a possible placement for J.C. The court observed that J.C. had bonded with his resource family. The court found that to remove [J.C.] because of an administrative error by advising [A.C.] that she had to be [twenty-one] years old - even if such an error occurred - would be contrary to [J.C.'s] best interests because of (1) his bond to his resource family, (2) the harm of removing [J.C.] from their care, and (3) the uncertainty of whether [A.C.] would be an appropriate caregiver and whether she would be able to ameliorate the harm of removal and be able to meet the needs of [J.C.] who was and is a "medically fragile" child.
The court stated that, at an early stage of the litigation, it indicated that it preferred a family placement for J.C. S.C. had been represented by counsel, and yet, she failed to bring A.C.'s interest to the court's attention until the trial of the matter, which was twenty-eight months after J.C. was placed with his resource family.
We are convinced that there is sufficient credible evidence in the record to support the trial court's findings. We are satisfied that the record supports the court's determination that the Division reasonably considered placement of the child with S.C.'s family members, including S.C.'s mother and maiden aunts. We are additionally satisfied that the record supports the court's finding that the Division's decision to rule out A.C. as a potential placement did not warrant denial of the Division's application to terminate S.C.'s parental rights, even though the Division's decision was due to an administrative error.
S.C. additionally argues that the trial court should not have given any weight to the bonds that had developed between J.C. and his foster parents because his continued placement in the foster home was due to the Division's erroneous rejection of A.C. as a potential placement. We do not agree.
As we have explained, J.C. was placed with his foster parents because S.C. was incapable of providing him with a safe and stable home, due to her incarcerations, mental health issues, lack of resources and substance abuse problems. Moreover, the evidence presented at trial raised serious doubts as to whether A.C. could capably act as J.C.'s caretaker.
At the time she asked to be considered, A.C. was a student who had no income and was living with her mother, upon whom she relied to pay her expenses. Under the circumstances, J.C.'s continued placement with his foster parents was reasonable. Therefore, the trial court did not err in considering the bonds that developed between J.C. and his foster parents in determining whether termination of S.C.'s parental rights would be in the child's best interests.
S.C. further argues that the trial judge should have recused himself. Again, we disagree.
At the trial, before the first witness was called, S.C.'s attorney approached the bench and asked whether the court had written a letter of reference for J.C.'s caregivers. The judge could not recall.
Defense counsel provided the court with a copy of the letter. The judge read it aloud and explained that it was a letter written on behalf of an older child the same couple had adopted. The judge had recommended the child for admission to a program at a vocational and technical school. The following colloquy ensued:
THE COURT: Do you have any other questions to ask?
DEFENSE COUNSEL: No, I'm confident from what you told me there's no conflict Your Honor. THE COURT: Good. And I will not recuse myself . . . because I feel I know that I can fairly and impartially hear this, and that this limited involvement would not affect my ability to do so. . . .
We are satisfied that, because her attorney stated that there was "no conflict" in the judge presiding at the trial, S.C. cannot now argue that the judge erred by failing to disqualify himself. N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010) (holding that a party may not consent to action on the part of the court and then argue that it was erroneous and prejudicial).
Furthermore, the judge's recusal was not required by Rule 1:12-1(f). The rule states that a judge may not sit in a matter "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Ibid. The judge was not disqualified from hearing this case because he had written the aforementioned letter. Moreover, S.C.'s attorney stated that he believed the judge could be fair and impartial.