October 4, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0120-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Messano and Lihotz.
Defendant D.S.B. appeals from the Family Division's order terminating her parental rights to her daughter, Carol.*fn1 Carol's father, C.B., was a co-defendant in the guardianship trial, and the order also terminated his parental rights to Carol. C.B. has not appealed.
When the State seeks to terminate parental rights, the Division of Youth and Family Services (the Division)*fn2 must prove by clear and convincing evidence each of the following four standards:
(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).]
See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).
In this case, defendant argues solely that the Division failed to meet its burden with respect to prong three of the statutory test. We have considered this argument in light of the record and applicable legal standards. We affirm.
Defendant's involvement with the Division dates back to 1999. Carol, defendant's seventh child, was born in May of 2008. When the guardianship complaint in this case was filed in April 2010, defendant's six older children were either adults, in the custody of relatives, or had been adopted as a result of a prior termination proceeding.
In April 2006, the Division sought care custody and control of Karen and Charles, the children of defendant and C.B., who at the time were eighteen months and three-and-one-half years old respectively. The Division received a referral that defendant had left the children alone in a motel room with their older half-brother, defendant's child by a prior marriage. C.B. was incarcerated at the time and defendant was pregnant with Carol. Investigation proved the veracity of the referral.
The record reflects that the Division referred defendant to the Center for Family Services (CFS) for various counseling services. However, a June 27, 2006 memo from CFS indicates defendant's referral was terminated after a series of "no show[s]." CFS was unable to locate defendant whose whereabouts "were currently unknown to [the Division]." Subsequent referrals resulted in a February 6, 2007 letter in which CFS notified defendant and C.B. that their file was closed "due to lack of attendance or response from previous letters and/or phone calls."
Defendant's referral to My Father's House, Inc., a substance abuse treatment program, failed for similar reasons. After her assessment in June 2007, defendant's case was closed by July because the program could not contact her and she "consistently failed to follow [her] agreed upon treatment plan." The program's records demonstrate defendant failed to appear for five scheduled appointments between June 21 and 29, 2007. In March 2008, defendant and C.B. executed an identified surrender of their parental rights to Karen and Charles.
In December 2008, DYFS received a referral from C.B.'s sister who had adopted Karen and Charles. She alleged that defendant was neglecting Carol and had not enrolled one of her older sons, then living with defendant, in school. When the Division workers arrived at defendant's home, she claimed that Carol and her son were in California with defendant's mother. Defendant refused to provide her mother's contact information. Division workers were ultimately able to locate Carol's maternal grandmother in California; she told them that neither child was with her. On January 9, 2009, the Division filed a Verified Complaint and obtained an order of investigation compelling defendant's cooperation.
On January 27, 2009, police executed a search warrant of defendant's apartment and seized drugs and guns. Carol and defendant's three older sons were present. Detectives from the Office of the Attorney General advised the Division of defendant's arrest and sought its assistance regarding Carol. The Division effectuated an emergency removal, and, at the hearing held two days later, the judge awarded care, custody and control of Carol to the Division.*fn3 On February 11, the Division placed Carol with C.B.'s cousins.
On April 22, at the Division's behest, Martin Richter, Ed.D., conducted a psychological evaluation of defendant at the correctional center. Richter opined that although defendant "appears to be able to cope with normal levels of stress[,]" she would "likely . . . have difficulty maintaining consistent behavior and emotional stability in her life." Because of defendant's "lack of candor," Richter was unable to make any recommendations regarding the possible return of Carol to defendant's care. He recommended that a drug and alcohol evaluation of defendant be performed.
Defendant was still in custody at the time of the fact-finding hearing on May 5, at which the judge found that defendant had "abused or neglected [Carol] in that [she was] incarcerated and could not care for the minor child." On July 14, defendant pled guilty to two counts of a twelve-count indictment charging her with CDS offenses stemming from the January arrest. At a compliance review hearing in September, the judge ordered that services be provided to defendant upon her release. On October 23, defendant was sentenced to a five-year prison term.
Defendant was released from custody and placed in the Intensive Supervision Program (ISP) on January 12, 2010. As part of that program, defendant was enrolled in drug treatment services provided by Greater Trenton Behavioral HealthCare (Greater Trenton). In March, the Division was ordered to refer defendant to parenting classes and provide her with bus passes so she could attend visitation with Carol.
In March, the court approved the Division's permanency plan for termination of defendant's parental rights followed by Carol's adoption by C.B.'s cousins, with whom Carol had continuously resided for the preceding fourteen months. At the guardianship trial, the Division's caseworker, Siomara Rivera, testified that defendant's attendance at visitation was "sporadic" at first and then ended completely in May 2010. Rivera further testified that defendant was "referred, but never complied with" the drug and alcohol services provided by ISP. As to the parenting classes, Rivera indicated that defendant attended three sessions and "was terminated for her attendance."
The Division could not locate defendant again until December 2010. Based upon information provided by C.B. at a hearing in court, the Division located defendant in the Mercer County jail. She had been incarcerated since October 26 because of what Rivera testified was an "ISP violation," although defendant told Rivera she was returned to custody because ISP "had no housing" for her. Defendant remained incarcerated until January 28, 2011.
Linda R. Jeffrey, Ph.D, conducted a psychological evaluation of defendant on April 12, 2011. Based upon her interview of defendant and defendant's performance on various tests, Jeffrey offered the following diagnosis: "Adjustment disorder with Mixed Disturbance of Emotions and Conduct; Personality Disorder NOS with histrionic and narcissistic personality traits and antisocial and paranoid features . . . ." Jeffrey concluded that defendant's "Global Assessment of Functioning (GAF) was 40, indicating major impairment in work, family relations, judgment and rule-governed behavior." Jeffrey further opined that defendant's "adjustment and personality problems are significant and seriously decrease her parenting capacity." Jeffrey concluded that defendant was "not prepared to provide responsible, reliable and attuned parenting for [Carol][,]" who would "likely . . . be placed at risk for harm in [defendant's] care." Jeffrey testified as the Division's expert at the guardianship trial in a manner consistent with her report.
Jeffrey also conducted a bonding evaluation between defendant and Carol. Jeffrey concluded that Carol "related to [defendant] as a friendly visitor. She did not relate to her as a parental figure." Jeffrey further opined that "[s]everance of their relationship [wa]s unlikely to cause serious and enduring harm." At trial, Jeffrey testified in a consistent fashion.
Defendant testified at trial. She was still in ISP at the time and claimed she would be released from the program in five months. Defendant said she had been drug free for three years, was living in "a home for women in transition," attending a "day program" at Greater Trenton and going to alcohol and substance abuse programs twice per week. If Carol was returned to her custody, defendant planned to move in with her twenty-one-year old son who lived in Camden. Defendant intended to find a part-time job to supplement Social Security disability benefits she expected, but had not yet begun, to receive.
On cross-examination, defendant acknowledged that she had attended only one court proceeding since the guardianship complaint was filed. She also admitted that she had failed to contact the Division, or her attorney, regarding her whereabouts for an extended period of time. Defendant testified that she was unable to attend visitation with Carol during this time because "[a] number of things happened while [she] was away for those months . . . ."
The trial judge rendered an oral decision on the record on June 29, 2011, the day after testimony was completed. He found the testimony of Rivera and Jeffrey to be credible. The judge cited the documentary evidence regarding the 2006 removal of defendant's two other children. He noted that the Division offered services at that time, including "substance abuse management, anger management and parenting classes[,]" however he concluded "[t]here was some attendance, but no completion." The judge found that defendant's visits with Carol were sporadic.
The judge also concluded that defendant's testimony was "less than credible, and[,] in a sense, wishful thinking on her part." He summarized his factual conclusions as follows:
[Defendant] was in prison from January of  to January of . When released, she did not attempt to contact her child. She finally appeared in March of 2010. She went missing thereafter, and now asks for more time. To make [Carol] wait for a situation which might not occur, and which based on past performance, is unlikely to occur, would be unconscionable. Permanency in the child's life is paramount and is fundamental.
The judge considered all four prongs of the statutory test. As to prong three, the judge concluded that the Division "ha[d] made reasonable efforts to provide services to . . . [defendant], both before and after [Carol] was removed . . . ." He entered the order under review terminating defendant's parental rights to Carol.
We state some basic principles that inform our review. "We will not disturb the family court's decision to terminate parental rights 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) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court 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." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
We accord particular deference to the judge's factfinding
because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
As noted, defendant only challenges the determination regarding prong three of the statutory test, i.e., the Division proved by clear and convincing evidence that it "made reasonable efforts to provide services to help the [defendant] correct the circumstances which led to [Carol's] placement outside the home . . . ." N.J.S.A. 30:4C-15.1(a)(3). Defendant specifically argues that the Division failed to develop "a plan for appropriate services," made no "effort to facilitate visitation . . . the months [defendant] was later incarcerated" and failed to communicate with ISP.
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281.
A court must consider whether a parent actively participated in the reunification effort. See In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that [the Division] met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007). Moreover, "[e]ven if the Division ha[s] been deficient in the services offered to" a parent, reversal of the termination order is not necessarily "warranted, because the best interests of the child controls." Id. at 621.
In this case, it is undisputed that before Carol's birth, the Division had repeatedly provided services to defendant and C.B. in an effort to address the circumstances that led to the removal of their other children. In reaching his determination in this case, the trial judge specifically referenced the 2006 removal and the services provided at that time.
Less than one year after surrendering her parental rights to Karen and Charles, and when Carol was less than three-years old, defendant's home was raided by police who seized guns and drugs from the premises. Defendant remained incarcerated for one year thereafter having pled guilty to drug offenses stemming from the raid. Although the Division is not relieved of its duty under the statute when a parent is incarcerated, we have "recognize[d] the difficulty and likely futility of providing services to a person in custody." N.J. Div. of Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006).
Defendant was released from custody into the ISP program in January 2010. She did not attempt to see her daughter immediately, and it is undisputed that defendant had "sporadic" visitation with her daughter from the point of her release until May 2010, when she was re-incarcerated, the exact circumstances of which are unclear. Rivera testified that defendant violated the terms of the ISP program, although defendant claimed she was returned to custody because of a lack of housing. The record reveals no documentary evidence in this regard.
However, defendant's testimony on this score provided no elucidation. She stated simply without further explanation that "a lot of things happened" during this period of time. It was undisputed that she did not attempt to contact the Division, her attorney or the Court from May until December 2010 when C.B. advised the court of defendant's re-incarceration. The Division's inability to provide and monitor a coherent plan for services or provide for consistent visitation under these circumstances is entirely understandable.
Rivera testified regarding the difficulty in obtaining documentation from ISP, and we do not countenance the imposition of inter-agency obstacles to information gathering, if such were the case. Nonetheless, Rivera stated that defendant was receiving services through ISP, including "an umbrella [of services] that carrie[d] a lot of different programs," "mental health support," parenting classes and group counseling sessions. We do not believe it was necessary for the Division to independently provide services of a similar nature in order for it to meet its requirements under the third prong of N.J.S.A. 30:4C-15.1(a).
In any event, "the best interests of the child controls" the ultimate determination regarding termination of parental rights. F.H., supra, 389 N.J. Super. at 621. We have no doubt that the evidence in this case was clear and convincing as to all four prongs and demonstrated that Carol's best interests were served by the termination of defendant's parental rights.