June 13, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF G.H.S., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-166-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2012 -
Before Judges Sabatino and Fasciale.
S.R.S. appeals from an August 16, 2011 order terminating his parental rights to his biological daughter, G.H.S.*fn1 He argues that the judge erred by terminating his rights because the Division of Youth and Family Services (the Division or DYFS) failed to establish by clear and convincing evidence at trial each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.
In October 2009, the Division received a referral expressing concerns for G.H.S.'s well-being. The caller asserted that the mother was using drugs and "on the streets," that S.R.S. had no means to support the family, that the parents were asking others to provide diapers and milk, that G.H.S.'s stroller and mattress were dotted with cigarette burn holes, and that G.H.S. was sleeping with her parents on a couch that contained cigarette burn holes. As a result, the Division investigated the allegations.
Caseworkers arrived at the home and observed that the mother was "very highly intoxicated, her eyes were dilated[,] and . . . she was very jittery." They noted that she appeared to be under the influence of drugs. The caseworkers learned that G.H.S. had been staying with a paternal aunt for about one week, while the parents sorted out what were described in the record as some "problems" between them. As the caseworkers attempted to inspect the home, S.R.S. entered and, according to the testimony of one of the caseworks, "was very vulgar . . ., very hostile, and became very threatening to them." The caseworkers called 9-1-1 because S.R.S. chased them out of the house and threatened to shoot them. When the caseworkers returned to the house with the police, the doors were locked and no one was there. The caseworkers returned to the home over the next few days to perform an inspection, but were unsuccessful.
In late October and December 2009, a caseworker conducted a home inspection and communicated with both parents. S.R.S. stated that he was receiving monthly Social Security disability benefits for diabetes, asthma, and sleep apnea. The mother explained that she intended to apply for benefits for bipolar and obsessive compulsive disorders. The caseworker observed that the home was without much food. The Division learned that the parents had an addiction to drugs, and S.R.S. admitted that, in the preceding month, he had been arrested and charged with four drug-related offenses and for making terroristic threats. Although S.R.S. tested positive for alcohol and cocaine, he was reluctant to seek treatment for substance abuse or his psychological problems.
Meanwhile, the Division learned that G.H.S. was again staying with the paternal aunt, who had notified the caseworkers that S.R.S. had threatened to kill her unless she returned G.H.S. to him. The aunt contacted the police and obtained a restraining order against S.R.S., and the police then issued a warrant for his arrest.
In January 2010, the Division conducted a Dodd removal,*fn2 without any objection by the paternal aunt, and placed G.H.S. in a non-relative resource approved home. The court entered an order to show cause, approved the removal to avoid ongoing risk to G.H.S., and awarded to the Division care, custody, and supervision. The judge found that both parents suffered from substance abuse issues, and that the paternal aunt had obtained a restraining order to protect herself, her family, and G.H.S. from S.R.S.'s threats of violence. The judge ordered S.R.S. to submit to substance abuse and psychological evaluations, and permitted S.R.S. to participate in weekly supervised visitation.
G.H.S., who suffers from developmental and speech delays, was then removed from the resource home and placed in a maternal aunt's home. However, because the maternal aunt was unable to care for G.H.S., the Division, in July 2011,*fn3 placed G.H.S. in her current foster home, where she remains today with her half-sister. The current foster parents adopted the half-sister and wish to adopt G.H.S., too.
In May 2010, the judge conducted a fact-finding hearing and concluded that S.R.S. abused and neglected G.H.S. The judge ordered S.R.S to attend classes for parenting skills and anger management and submit to substance abuse treatment.*fn4 The judge permitted S.R.S. to continue supervised visitation with G.H.S. S.R.S. attended drug treatment and anger management classes, but failed to complete the latter because he verbally threatened staff members. He submitted to a psychological evaluation and was diagnosed with mood disorder and intermittent explosive disorder.
In January 2011, the judge conducted a permanency hearing and approved a plan of termination of parental rights followed by adoption. S.R.S. did not appear at the permanency hearing.
In March 2011, the Division filed its complaint seeking guardianship.
In August 2011, the judge conducted the guardianship trial over two days. The Division produced two witnesses: a DYFS caseworker and Frank Schwoeri, Ph.D., a clinical psychologist. S.R.S. testified at the trial and called as his witness Roberta Dihoff, Ph.D., a clinical psychologist. The judge terminated the parental rights of S.R.S. on August 16, 2011, the last day of trial.*fn5
In rendering his thirteen-page oral opinion, with which we substantially agree, the judge correctly employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:
(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[;]
(3) The [D]ivision 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.
See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (discussing the four prongs of the best interests standard in the context of a termination of parental rights case).
Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a judge's factual findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb those findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings are to receive deference unless "so wide of the mark that the judge was clearly mistaken"). Furthermore, "we defer to a trial court's factual findings 'because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'"
N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010) (internal quotation marks omitted) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
As to the first prong, N.J.S.A. 30:4C-15.1(a)(1), the judge determined that there was clear and convincing evidence that G.H.S.'s health and development have been endangered by her relationship with S.R.S. The judge found that S.R.S. had a history of making violent threats toward others, including DYFS caseworkers, the paternal aunt, and the anger management program staff. Competent psychological expert testimony demonstrated, based on that history and the results of psychological testing, that S.R.S.'s anger management and other difficulties posed a substantial risk of harm to the child. Indeed, in their testimony, the parties' psychologists agreed that S.R.S.'s continuing difficulties with anger hindered his ability to safely parent G.H.S.
The judge also found clear and convincing evidence to support the second prong, N.J.S.A. 30:4C-15.1(a)(2). He agreed that S.R.S was committed to reunification and addressing the circumstances of G.H.S.'s removal, but concluded that S.R.S. would simply be unable to address those circumstances adequately within a reasonable time. Although S.R.S. attended the anger management program, he did not complete the program because of a violent incident involving the staff members. The Division's expert doubted that S.R.S. would derive enough benefit from any further treatment to justify reunification. Moreover, the expert's conclusion that S.R.S. would have difficulty safely and effectively parenting G.H.S. did not hinge on his medical condition, but was instead grounded heavily in the circumstances of S.R.S.'s psychological condition and history. Again, both testifying experts agreed that, despite his willingness, S.R.S. remained unable to overcome those circumstances.
As for the third prong, N.J.S.A. 30:4C-15.1(a)(3), the judge found that the Division had in fact made reasonable efforts to provide services to S.R.S. Those services included mental health evaluations and treatment, substance abuse assessments, parenting classes, supervised visitation, and anger management classes.
S.R.S. maintains on appeal that, although he never successfully completed the anger management program, the Division failed to refer him to a more intensive program, even though his difficulties with anger management were among its chief concerns impeding reunification. He contends that the Division did not refer him to any services at all that would address his condition.
Although the Division never referred defendant to a more intensive anger management program after he failed to complete the first, Dr. Schwoeri doubted that he would derive sufficient benefit from further services to justify reunion. Further, although the Division never referred S.R.S. for services to address his medical condition, that condition was, by far, not the overwhelming impediment to reunification. Moreover, it is undisputed that the Division facilitated regular visitations to ensure maintenance of any bond he might have had with G.H.S. in case reunification became feasible. In any event, even if there were deficiencies in the Division's reasonable efforts, as S.R.S. alleges, those deficiencies were minor and insufficient to overcome S.R.S.'s present inability to parent G.H.S. safely and fulfill her need for stability at this crucial point in her development. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (explaining that, under the facts of that case, even if DYFS had not made reasonable efforts to provide services to the parent, termination would still be in the best interests of the child), certif. denied, 192 N.J. 68 (2007).
To be sure, the Division offered no evidence that it had formally ruled out placement with the paternal aunt pursuant to N.J.S.A. 30:4C-12.1(b). However, S.R.S., who claimed at trial to have maintained a good relationship with the paternal aunt notwithstanding his outstanding arrest warrant for making terroristic threats against her, offers no evidence that she had any interest at all in adopting the child after surrendering custody without objection.
In finding that the Division established the fourth prong, N.J.S.A. 30:4C-15.1(a)(4), the judge concluded that termination of parental rights would not do more harm than good. S.R.S. asserts that neither expert conducted a bonding evaluation of G.H.S.'s relationship with her foster parents, and that his expert, Dr. Dihoff, opined that removing the child from their home would not be detrimental to her because she had lived with them for only a brief time and had had other placements. Dr. Schwoeri testified, however, that the child had no significant bond with S.R.S. and that placement with him would be detrimental to G.H.S.'s welfare.
Insofar as S.R.S. challenges Dr. Schwoeri's credibility, the judge observed Dr. Schwoeri's live testimony firsthand and determined that he was credible. That determination deserves deference on review. L.L., supra, 201 N.J. at 226. In any event, even Dr. Dihoff agreed that defendant was not prepared for reunification. Although she vaguely suggested that reunification might one day be appropriate with some effort on S.R.S.'s part and his compliance with appropriate services, Dr. Dihoff never specified what services might be appropriate or whether S.R.S. could realistically stand to benefit enough from them to render reunification a feasible option in any reasonable period of time.
Ideally, expert testimony would have addressed G.H.S.'s bond with her foster family, In re Guardianship of J.C., 129 N.J. 1, 19 (1992), but the absence of such testimony does not foreclose a conclusion that termination was in the child's best interests. Indeed, parental rights may be terminated under appropriate circumstances notwithstanding the lack of any immediate prospects for adoption. See A.W., supra, 103 N.J. at 611 (noting that "there will be circumstances when the termination of parental rights must precede the permanency plan"). Here, of course, G.H.S.'s foster parents are interested in adoption, just as they had adopted G.H.S.'s half-sister. Moreover, G.H.S.'s compelling need for permanency, see, e.g., 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), supported the conclusion required by the fourth prong. In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999).
Following our review of the record, we conclude that there was adequate, substantial and credible evidence to support the judge's findings under each prong of the best interests standard, and that the judge correctly determined that the Division had established by clear and convincing evidence each of the four prongs.