November 19, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
A.H., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF J.M.H. AND A.C., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-178-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Lihotz and Kennedy.
Defendant A.H. appeals from the Family Part's judgment terminating her parental rights to her sons J.M.H. (fictitiously referred to as Josh) and A.C. (fictitiously referred to as Alfred).*fn1 Defendant raises the following points on appeal:
THE COURT ERRED IN FINDING THAT THE DIVISION SATISFIED THE FIRST PRONG OF THE BEST INTERESTS TEST; THERE WAS NEVER A FINDING THAT DEFENDANT-APPELLANT HARMED THE INFANT, A.C.
POINT II THE TRIAL COURT ERRED BY TERMINATING THE MOTHER'S PARENTAL RIGHTS BECAUSE ALTERNATIVES TO TERMINATION AND ADOPTION, INCLUDING PLACEMENT WITH RELATIVES, WERE NOT PROPERLY CONSIDERED.
POINT III THE TRIAL COURT ERRED BY TERMINATING THE MOTHER'S PARENTAL RIGHTS BECAUSE A FINDING THAT THE FOURTH PRONG OF THE BEST INTERESTS TEST HAS BEEN MET DOES NOT BY ITSELF MEAN THAT THAT PARENTAL RIGHTS SHOULD BE TERMINATED.
After considering the arguments presented in light of the record and the applicable law, we are satisfied that the trial judge's findings are firmly supported by substantial, credible evidence in the record as a whole and fully supported his legal conclusions. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). Consequently, we affirm the judgment of the Family Part.
We derive the following facts from the trial record. Defendant was born on April 15, 1991, and was placed in foster care at age ten. She was returned to her mother's custody in 2006, dropped out of high school in 2007 and gave birth to Josh in October 2007. Prior to Josh's birth, defendant had been referred to the Adolescent Servicing Center for pregnancy guidance and parenting skills training, but the agency closed its file by May 2008 due to defendant's persistent failure to participate in services.
On April 9, 2008, the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division),*fn2 obtained an order for the care and supervision of Josh on the basis of a complaint alleging that the sixteen-year-old defendant failed to attend school or provide for the proper care of Josh. On May 12, 2008, the Family Part held a hearing in which it determined that defendant "abused or neglected" Josh by refusing to cooperate with the Division's services.
During caseworker visits over the next few months, Josh was found to be dirty and unhealthy in appearance and defendant was uncooperative with the Division's representatives. Because defendant had not arranged for any immunizations for Josh, in September 2008 the Division was granted legal custody of the child, and defendant was ordered to undergo a psychological evaluation and drug screening, to enroll in Vo-Tech school, and to apply for "NJ Kids Care" on behalf of Josh. The court also ordered Josh to be immunized and to have a medical evaluation within thirty days.
Defendant thereafter missed two scheduled drug screenings, but in November 2008 she appeared for a screening and tested negative for any substances. Defendant also appeared for one part of her court ordered psychological evaluation by Dr. Alice Nadelman, a psychologist, but refused to cooperate in a scheduled home visit. Dr. Nadelman found that defendant failed to provide Josh with "even minimally adequate parental care" and was "at high risk for abusive parental behavior." She added that defendant showed "virtually no knowledge" of "safe or appropriate parenting behavior" and was unwilling and unable to comply with court-ordered training and evaluations.
In December 2008, defendant was ordered to attend parenting skills classes at Urban League Life Skills and to continue to submit to drug screening. Defendant nonetheless resisted the Division's efforts to provide her with assistance and training, and on February 4, 2009, the court ordered the Division to take physical custody of Josh. The court further ordered that the Division explore placing defendant in a "Mommy and Me" program and to evaluate the putative paternal grandmother as a caretaker.
The Division thereafter arranged to get physical custody of Josh and found the sixteen-month-old child limping. The child was taken to the Jersey City Medical Center where x-rays and testing revealed that Josh had a broken femur and a ruptured tympanic membrane. Defendant later admitted that Josh had fallen down some stairs in January while under the care of defendant's boyfriend and that defendant failed to obtain medical help for the child out of fear of alerting the Division.
On February 6, 2009, Josh underwent a surgical repair of the fracture, and in April 2009 was placed in a foster home where he remains to date. Defendant was ordered to attend counseling and to undergo medical and substance abuse testing. The Division arranged an appointment for defendant to attend parenting skills training and counseling with the HOPE program. Defendant failed to attend the program or undergo the required medical testing. The putative paternal grandmother, as well as another relative of the defendant, were ruled out as caregivers for Josh. Defendant and her mother were also sentenced to probation for endangering the welfare of a child in connection with Josh's fractured femur and the failure to render aid.
In October 2009, the Division received a referral from the Jersey City Medical Center indicating that defendant was 30 weeks pregnant, suffered from syphilis and had not received any pre-natal care. The Division then sent field representatives to defendant's home with information about medical care and treatment. The Division also referred defendant to Adopt-A-Parent and ordered an alcohol and drug assessment.
On December 20, 2009, defendant gave birth to Alfred and the child
tested positive for syphilis. Defendant tested positive for marijuana,
as well. Defendant was substantiated for medical neglect and the
Division effected an emergent Dodd removal of Alfred.*fn3
Alfred was then placed into foster care in a
home where he remains to date. The court later approved the removal
and ordered defendant to comply with an alcohol and drug assessment
Defendant failed to comply with the substance assessments and other services offered to and ordered for her, and on April 5, 2010, following a hearing, the court determined that defendant had abused and neglected Alfred predicated on her medical neglect of the child. Thereafter, on May 16, 2010, defendant was evaluated by Dr. Mark Seglin, a psychologist, who found defendant to be suffering from paranoid and sadistic personality disorders and was "unfit to parent two infant children[.]"
In June 2010, defendant submitted to a drug and alcohol evaluation and her drug screen was positive for cannabinoids. She was referred for substance abuse therapy. Also, supervised visitation with the children showed defendant to be aggressive toward Josh.
Dr. Karen Wells, a psychologist, undertook a psychological evaluation of defendant in August 2010, and conducted bonding evaluations for Josh and defendant, and for Josh and his foster mother. Dr. Wells, who later testified at trial, determined that defendant's plans to reunite with her children were infected with "fantasy" and "magical thinking." She concluded that defendant suffered from dysthymia disorder and was unable to parent her children. She also found that while the relationship between Josh and defendant was "intact," Josh nonetheless was deeply attached to his foster mother and that disruption of that relationship would cause Josh to suffer "enduring" harm and grave distress.
An amended guardianship complaint was filed by the Division in December 2010, to include both Josh and Alfred. At trial, the Division called not only Dr. Wells, but also Dr. Nadelman, Dr. Nina Argawal, M.D., and the Division caseworkers. Dr. Argawal testified that the injury to Josh was "highly suspicious for non-accidental trauma." Defendant also testified, as did Dr. James Reynolds, a psychologist, called by defendant's counsel.
Dr. Reynolds stated that if defendant "were to commit herself to actively participating in all services being requested of her" she would develop the capacity to parent her children "in the not so distant future." He added that Josh would experience some harm if separated from defendant, but it would not be severe or enduring.
The trial judge, in a lengthy opinion from the bench, found that the Division had proved all the requirements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We need not reiterate here the judge's factual findings, given our detailed review of the trial record which essentially tracks the judge's findings and conclusions.
As noted earlier, defendant contends that there was "never a finding that defendant . . . harmed" Alfred, and that the court failed to "properly consider" placement with relatives. We shall briefly address these claims. We shall not address defendant's final argument that the court's findings on the "fourth prong" of the statute "does not by itself mean that parental rights should be terminated." The trial judge never so concluded and thus the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Under N.J.S.A. 30:4C-15.1(a), parental rights can be terminated only when the State proves that:
(1) The child's safety, health or development has been and 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 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.
Consideration of the four prongs of the statutory test must be made as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
Our task is to determine whether the trial court's decision "was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
Further, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should show deference to family court factfinding.'" A.R.G., supra, 361 N.J. Super. at 78 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We are satisfied after our review of the record overall that the Division met the statutory test by clear and convincing evidence.
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence 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. 30:4C-15.1(a)(1). "The harm shown . . . 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. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Accordingly, the absence of physical abuse or neglect is not conclusive; indeed, serious emotional developmental injury should be regarded as injury to the child. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977) (citation omitted); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
As to Alfred, the trial judge explicitly found that defendant arranged no pre-natal medical services; left the hospital with pre-term contractions against medical advice; gave birth to Alfred while positive for syphilis and marijuana; and caused the child to be born with syphilis. The judge also found that defendant lacked any knowledge of a child's developmental needs, could not take care of her own needs, and showed no willingness to improve. The judge noted that defendant's own expert stated that while defendant might be able to develop parenting skills with time, she was nonetheless unwilling to participate in programs to help her achieve that goal. Defendant was given repeated opportunities to resolve her drug use, mental health issues and parenting deficits, but repeatedly resisted the offered services. All of these factors support the trial judge's conclusion that the Division met the first prong by clear and convincing evidence.
Defendant also contends the Division had not "searched for family members" willing to accept Josh and Alfred for placement. Defendant fails to specify who those family members might be, however. By statute, when a child is removed from a parent's custody, the Division must attempt to find relatives with whom the child can be placed. N.J.S.A. 30:4C-12.1. Moreover, we have "previously acknowledged with approval 'the Division's policy to place children with relatives whenever possible.'" N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003)). "There is no presumption in favor of placement with relatives." Id. at 580. However, "N.J.S.A. 30:4C-12.1 . . . does not permit the Division to embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." Ibid.
Contrary to defendant's claims, the evidence at trial clearly showed the Division explored possible placement with several relatives, excluding defendant's own mother, who was patently inappropriate for placement. The Division considered Josh's putative father and paternal grandmother. However, subsequent DNA testing revealed that they were unrelated to Josh. The other individuals, a maternal aunt and a cousin, were considered, but did not meet state licensing requirements. The trial judge, in his oral opinion, explicitly referenced these individuals and his findings and conclusions are overwhelmingly supported in the record.