September 24, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF S.R., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-133-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Axelrad, Sapp-Peterson and Haas.
H.R. is the biological mother of S.R. (fictitiously Susan), born January 13, 2009. H.R. appeals the June 29, 2011 order terminating her parental rights to her child. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The Division of Youth and Family Services*fn1 (the Division) has been involved with H.R. since 2001 when, because of her own mother's drug use, H.R. was placed in the Division's care and custody. H.R. suffers from developmental disabilities and her cognitive skills have been scored in the "well below average range." In August 2006, she was placed in the foster home of A.D. H.R. received therapy and assistance from the Division through the Hispanic Information Center (HIC) and, in 2008, she also began to receive services from the Division of Developmental Disabilities (DDD).
In 2008, H.R. became pregnant and Susan was born on January 13, 2009.*fn2 Two days later, the Division executed an emergency removal of the child and placed her in the same foster home with H.R. under A.D.'s care. The very next month, however, A.D. advised the Division that H.R. was not showing any interest in Susan and that she was going out with her friends, rather than caring for the baby. On June 15, 2009, the Bureau of Guardianship Services (BGS) was appointed as H.R.'s limited guardian to act on her behalf.
However, H.R. refused to cooperate with A.D. and she continued to leave the child alone to go out with her friends. Following a December 22, 2009 hearing, the trial judge directed DDD to assist the Division in placing H.R. in a group home close to her daughter. The Division was also directed to explore the possibility of placing Susan with relatives, but none were found who were interested or able to care for the child.
On May 26, 2010, the Division advised the trial judge that its plan was to seek termination of H.R.'s parental rights, followed by A.D. adopting Susan. In June 2010, H.R., now twenty years old, moved into a DDD group home. She had one-hour weekly supervised visitation with Susan at the local Division office.
H.R. was also permitted to have supervised visitation with the child at A.D.'s home. On those occasions, however, H.R. usually arrived with her boyfriend and only stayed between fifteen and thirty minutes. H.R. ran away from the DDD home several times.
On October 20, 2010, the Division filed its guardianship complaint. In January 2011, the Division referred H.R. to Robert Kanen, Psy.D., for a psychological and bonding evaluation. Dr. Kanen testified at trial and his written report was admitted in evidence.
As a result of his testing and observations, Dr. Kanen found that H.R. was cognitively impaired and mildly retarded. He testified that H.R. had limited capacity to recognize Susan's needs, to deal effectively with doctors and teachers, to function in daily life, and to understand the world around her. He opined that it was unlikely that H.R. would ever be able to support herself, or a child, independently. He also believed that H.R. would not be able to provide Susan with a permanent, safe and secure home and that the child would be exposed to unnecessary risk of harm if returned to H.R.'s care.
Dr. Kanen performed a bonding evaluation of H.R., Susan and A.D. While Susan and her mother were "familiar" with each other, Dr. Kanen testified that Susan did not perceive H.R. as a parental figure and that any attachment between them was "very impaired." On the other hand, Susan had a secure relationship with A.D. and considered her as the parental figure in her life. Because H.R. did not understand the implications of removing Susan from A.D.'s care, Dr. Kanen testified that H.R. would not be able to address the serious and enduring harm Susan would suffer if she were removed from A.D.'s home. In contrast, Dr. Kanen testified that Susan would suffer a separation and grief reaction if removed from H.R.'s care, but there would be no severe and lasting harm because A.D. would be able to mitigate any such harm. Finally, Dr. Kanen opined that, if Susan went to live with H.R. in a supervised DDD apartment, the child would be harmed because strangers would have "to take over the parenting of two people," Susan and H.R.
Mark Friedman, a DDD psychologist, testified for H.R. Based upon his evaluation, he confirmed Dr. Kanen's view that H.R. suffered from significant cognitive deficits. Nevertheless, he opined that, if H.R. was able to live in a setting where she could be supervised, she would be able to care for Susan.
During Friedman's bonding evaluation, he observed that Susan referred to A.D. as "mommy" and he testified that there was a stronger bond between A.D. and Susan than between H.R. and the child. Nevertheless, Freidman did not believe that Susan would suffer any long-term consequences if she was separated from A.D. because the child would ultimately realize that she was with her mother and "that's going to go a long way towards mitigation." Although A.D. had consistently expressed a willingness to continue to permit H.R. to have contact with Susan, Friedman felt that there was no guarantee that would always be the case.
Friedman recommended that DDD place H.R. in a supervised apartment with Susan. However, because H.R. had run away from her current DDD group home on several occasions, and because she had been aggressive with staff and placed on medication for that reason, Friedman conceded that H.R., herself, would need twenty-four-hour supervision.
Gabriela Escobar Garcia, a Division caseworker, testified that H.R. was unable to care for Susan. H.R. did not identify any relatives willing to care for her daughter.
Edward Wallace of the New Jersey Bureau of Guardianship Services, who was H.R.'s guardian for medical, legal, and residential decisions, testified that DDD had worked with the Division to help A.D. become a licensed DDD sponsor, which would enable H.R. to continue to live with Susan. However, A.D. was never able to complete the process. Miaron Goods, a DDD supervisor, testified that most DDD contract providers would not be able to accommodate a parent with a child. In addition, to live in a supervised program, the DDD client must be self-sufficient and require minimal staff supervision. H.R., however, would need twenty-four-hour supervision because of her cognitive deficiencies and behavior issues.
Following the two-day bench trial, the trial judge issued an order on
June 29, 2011 terminating H.R.'s parental rights to Susan.*fn3
However, the judge did not place her findings of fact and
conclusions of law on the record until November 1, 2011, after H.R.
had already filed her notice of appeal.
H.R. raises the following issues on appeal:
POINT I. THE TRIAL COURT DEPRIVED H.R. OF DUE PROCESS AND IS IN VIOLATION OF FEDERAL LAW.
POINT II. THE TRIAL COURT'S DECISION TERMINATING THE PARENTAL RIGHTS OF H.R. TO [SUSAN] WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.
(1) There Was No Clear and Convincing Evidence that H.R. Harmed [Susan]; Any Risk of Future Harm was Speculative and Would Have Been Cured with the Provision of Appropriate Services.
(2) The Trial Court Erred in its Consideration of Alternatives to Termination of Parental Rights.
(3) The Division Failed to Prove by Clear and Convincing Evidence that Termination of Parental Rights Will Not Do More Harm than Good POINT III. THE TRIAL COURT'S FAILURE TO ISSUE AN OPINION IN THIS MATTER PRIOR TO THE ENTRY OF JUDGMENT OR WITHIN FIFTEEN DAYS OF THE FILING OF THE NOTICE OF APPEAL VIOLATES COURT RULE AND EVIDENCES PREJUDICE AGAINST H.R.
The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Ill., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered 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). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.
Under N.J.S.A. 30:4C-15.1(a), a court is authorized to terminate parental rights if the Division proves the following 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. 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 [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. [N.J.S.A. 30:4C-15.1(a).]
"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).
Our scope of review of a trial court's termination of parental rights is limited to "determin[ing] whether a trial court's decision . . . was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We will not disturb a trial court's factual findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).
On appeal, H.R. claims that the trial judge erred in terminating her parental rights because the Division failed to satisfy its burden of proof with regard to all four prongs of the best interests test. We do not agree.
With regard to prong one, H.R. argues that the trial judge erred by finding that Susan's safety, health or development has been or will continue to be endangered by the parental relationship. H.R. asserts that Susan never suffered any "actual harm" and, therefore, there was no basis for the judge's finding.
The first prong requires the Division to consider whether the parent has harmed or is likely to continue to harm the child. N.J.S.A. 30:4C-15.1(a)(1). The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348. The absence of physical abuse alone is not conclusive, because the court also must consider the potential for serious psychological harm to the child. In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977).
Courts, however, need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period constitutes a harm under the standard. K.H.O., supra, 161 N.J. at 356. The fact that a parent may be morally blameless is not a sufficient reason to tip the scales in his or her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Contrary to H.R.'s contentions, there was sufficient credible evidence in the record to support the trial judge's conclusion that, under these standards, Susan suffered harm as the result of the parental relationship. The judge found that H.R. failed to show interest in the child and she failed to assist A.D. in caring for her. Instead, H.R. preferred to spend time with her friends. Because of her cognitive limitations, the judge further noted that both experts opined that H.R. could not care for Susan and she was unable to live independently or support herself or a child.
Under these circumstances, Susan's health and development would be jeopardized if she returned to H.R. Thus, the trial judge correctly held that the Division sustained its burden as to the first prong. See A.G., supra, 344 N.J. Super. at 436 (holding there was sufficient evidence to support court's finding under first prong that mother was unable to protect and care for the child on a daily basis due to mental illness); Guardianship of R., supra, 155 N.J. Super. at 194 (affirming termination of parental rights where parents' mental illnesses created "an environment in which they [could] not adequately care for and raise the children").
The second prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011).
H.R. argues that, with appropriate support, any harm to her child can be eliminated. However, there is ample evidence in the record to support the trial judge's finding that H.R.'s lack of cognitive abilities made her unable to eliminate any harm caused by a separation of Susan and A.D. H.R. had continually expressed more concern about being with friends than with her child and the judge found that H.R.'s limited ability to understand or respond to Susan's needs made her unable to provide a safe and stable home for the child.
Both experts agreed that H.R. could not care for Susan on her own and that she needed full-time supervision for both herself and her child. Dr. Kanen testified that any supervised living arrangement would require staff to "parent both people" and that "the child could end up having over the years multiple caretakers." Friedman conceded that the staff at DDD facilities were frequently rotated so that different people would be involved in the child's care. There is no evidence in the record to show that H.R. had the mental status sufficient to ever provide a safe and stable home for Susan. See K.H.O., supra, 161 N.J. at 353 (holding that drug-addicted mother's continuing inability to care for her child or provide a safe and stable home met standards of parental unfitness).
Moreover, the evidence supports the judge's conclusion that the delay in permanent placement caused by H.R.'s inability to assume a parental role would harm the child. Id. at 354. The expert evaluations established that Susan had strong bonds with A.D., and that separation from her foster parent would cause the child further harm. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 283-85 (2007) (holding where there was no evidence that the father's situation was improving or would improve in the future, and where the father had failed to create a stable home, the delay in permanent placement would add to the harm). Therefore, the judge's finding that the second prong of the statutory test was satisfied is fully supported by the record.
H.R. contends the evidence presented at trial was insufficient to support the trial judge's finding that the Division made reasonable efforts to provide adequate services and that it considered alternatives to termination. We disagree.
The third prong requires DYFS to make reasonable efforts to provide services to assist the parents to correct their circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates on an individual basis the efforts undertaken by DYFS to reunite a family. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). These efforts may include the encouragement of an ongoing parent-child relationship and regular visitation. Id. at 393. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.
The record supports the judge's findings that the Division made reasonable efforts to help H.R. correct the circumstances that led to Susan's placement in foster care. She initially received services through HIC and, after Susan was born, through DDD. As the judge noted, these services included pre-birth parenting classes, a home health aide, homemaker services, therapy and counseling, medical appointments, transportation and visitation. H.R. was also given psychiatric, psychological and neurological evaluations. There is, however, nothing in the record to indicate that H.R. ever completed any of the parenting programs.
H.R. advised the Division that she had no regular contact with any family members. Therefore, there was no possibility of placing Susan with a relative. The Division and DDD worked with A.D. to become a DDD provider, but A.D. was unable to meet the licensing requirement that she be proficient in English. There was little likelihood of finding a supervised apartment program that would take both H.R. and Susan and, in any event, it would be the supervisors, not H.R., who would have to care for the child on a twenty-four-hour basis. Thus, the record supports the trial judge's finding that the Division had made reasonable efforts to assist H.R. and that there were no alternatives to the termination of her parental rights.
The fourth prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.
The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).
Here, the trial judge found that termination of parental rights would not do more harm than good and concluded that it was in Susan's best interests to remain in A.D.'s care. There was ample evidence in the record to support this finding. Although H.R. is capable of maintaining a relationship with Susan, she is not capable of strengthening or extending that relationship over time. Since Susan was born, there has been no significant improvement in H.R.'s parenting abilities. See A.G., supra, 344 N.J. Super. at 439-40 (holding relationship with foster parents must be maintained where the child was happy and developing normally, and the child had limited relationship with his biological parents, who suffered from mental disorders that affected their ability to parent).
Both experts agreed that Susan had a stronger bond with A.D. than with H.R. Relying on Dr. Kanen's opinion, the judge found that Susan would suffer serious and enduring harm if she was separated from A.D., with whom she was securely attached. "[W]e rely on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-finding based thereon, noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and the weight to be accorded [the] testimony." In re Guardianship of DMH, 161 N.J. 365, 382 (1999).
Contrary to H.R.'s argument, the judge fully explained why she found Dr. Kanen's testimony on prong four to be more persuasive than that offered by the defense. Under Friedman's plan, three separate shifts of DDD staff would have to supervise both H.R. and Susan twenty-four hours a day. However, H.R. would never be able to care for the child herself and the child would be raised by strangers. This would clearly harm Susan.
On the other hand, following Dr. Kanen's recommendation would enable A.D. to continue to provide a stable home for Susan. Even more importantly, A.D. intended to adopt Susan and to permit H.R. to continue to have contact with the child. Thus, the record in this case fully supports the trial judge's conclusion that termination of Susan's relationship with H.R. would not cause the child more harm than good.
Finally, H.R. argues that she did not receive a fair trial because the trial judge expressed her opinion on the termination of H.R.'s parental rights at a pretrial hearing held on November 29, 2010. On that date, the Division's attorney advised the judge that its psychiatrist had performed a mental competency evaluation of H.R. to determine if she had the capacity to understand the proceedings, and that it was waiting for the results. The court responded, "But why? Why is the State doing this? Explain this to me. You have an open and shut case here of an inability of a parent, in the best interest of the child, to parent that child. I don't understand." The Division's attorney replied, "Your Honor, we know the merits of this case. We want to go through the motions to make sure that we are providing the most procedural due process to [H.R.]." The judge stated that it would be "fine" for the Division to present proofs to protect its interests, but the judge was "not going to engage in a three-day trial with an inevitable result." The judge explained that "to keep just dragging this thing on to me is truly a waste of all of our energies and resources." The judge concluded this colloquy by advising counsel that she wanted "to move this as quickly as possible."
We do not agree with the tenor of the judge's comments to counsel. Although we recognize the increasing dockets that are dominating our children-in-court calendar, and the need to resolve cases expeditiously, we nevertheless caution that, in attempting to move or settle a case, a judge should refrain from making comments that a litigant might misconstrue as indicating that his or her case will not receive the court's full attention if an amicable resolution of the matter is not achieved.
However, the comments do not demonstrate a bias on the part of the judge. The judge's comments were made in the context of attempting to work out a future schedule of proceedings and determining whether the parties could agree to a voluntary surrender of H.R.'s parental rights. The comments were directed to the Division's attorney, not to H.R. H.R.'s attorney fully participated in the discussion and voiced no objection to the judge's comments. There is no evidence that the trial, which was conducted four months later in April 2011, was unfair. H.R. was represented by counsel and had a full opportunity to cross-examine the Division's witnesses and to present her own evidence and witnesses, including an expert. We have found that there is sufficient credible evidence in the record to support the judge's findings of fact, as well as her decision to terminate H.R.'s parental rights.
H.R. also argues that the trial judge improperly issued her findings of fact and conclusion of law months after entering the order terminating her parental rights. The order was filed on June 29, 2011 and the judge did not place an oral decision on the record until November 1, 2011. By that time, H.R. had already filed her notice of appeal.
We have consistently admonished trial courts not to engage in the practice of entering a final judgment with an indication that the underlying factual findings and reasoning will be supplied at a later date. In the context of a matrimonial matter, we recently stated that
[t]he practice deviates from principles of fundamental due process at the expense of litigants, who must comply as ordered without benefit of the basis of the trial court's determinations. Such a practice perverts a trial judge's primary obligation to make factual findings to support all legal conclusions. [Ducey v. Ducey, 424 N.J. Super. 68, 74 (App. Div. 2012).]
Those comments are equally applicable here. Timely factfinding "'is fundamental to the fairness of the proceedings and serves as a necessary predicate to meaningful review.'" Ibid. (quoting R.M. v. Supreme Court of N.J., 190 N.J. 1, 12 (2007)). No matter how busy the docket, a trial judge must provide the parties with his or her rationale for each order at the time it is filed.
Nevertheless, the findings of fact and conclusions of law that were belatedly rendered by the judge here were consistent with the June 29, 2011 order terminating H.R.'s parental rights. Cf. Ducey, supra (vacating judgment of divorce (JOD) where, three months after its entry, the court issued findings on financial issues that conflicted with the conclusions set forth in the JOD, without any explanation for the conflict). Moreover, there was substantial credible evidence in the record to support the judge's findings. Thus, contrary to H.R.'s assertion, the delay in the issuance of the judge's oral opinion did not deprive H.R. of the ability to prosecute her appeal.