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New Jersey Division of Youth and Family Services,*Fn1 v. R.F

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 26, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
R.F., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.F., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-35-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 10, 2012

Before Judges Ostrer and Kennedy.

Defendant,*fn2 R.F. (Rose)*fn3 , appeals from a September 30, 2011 judgment of guardianship, terminating her parental rights to her daughter, M.F. (Mary), born in 2008, after a three day trial conducted in July, August and September 2011. The Division's complaint was filed in May 2010. Mary has been in foster care since December 2008.

On appeal, defendant argues the Division failed to present clear and convincing proof justifying termination of parental rights under each of the four prongs of N.J.S.A. 30:4C-15.1(a)(1) to (4). In particular, Rose argues the court did not adequately consider placement of Mary with her maternal grandmother Rita as an alternative to termination of parental rights. See N.J.S.A. 30:4C-15.1(a)(3). She also argues the court gave too much weight to Rose's unsuccessful efforts to address her substance abuse, and too little weight to the harm Mary would suffer as a result of the termination of her ties not only to her mother, but her siblings and grandmother, as well.

We affirm substantially for the reasons Judge Harold U. Johnson expressed in his oral decision.

I.

Rose was a persistent drug abuser. Born June 1985, she began using marijuana at age thirteen, and continued using drugs during the trial. Over the years, she abused Xanax, valium, cocaine and heroin. At age twenty, she was convicted of selling drugs. She attended multiple drug treatment programs. She completed one outpatient program in 2007, but the evidence at trial established that after relapsing, she failed to complete other programs, including one as recently as 2011. She tested positive for drug use on multiple occasions in 2008, 2010 and 2011. In June 2011, shortly before trial began, she admitted she was taking Percocet, using marijuana, and had been snorting heroin daily. She told an emergency room staff person she was using Percocet and heroin to try to cope with her depression, and had last used heroin the day before. A drug test conducted after the second day of trial in August 2011 revealed use of marijuana, cocaine and morphine.

The Division received multiple referrals regarding Rose and Mark in 2004. Rose's mother, Rita, testified she obtained a court order from another judge granting her custody of "the children" in 2004. In October 2005, notwithstanding Rita's custody, Rose admitted she physically abused Jerry, causing bruising on both his legs.

In May 2007, while Rita lived in a hotel, she allowed the two boys to live with Rose, notwithstanding the requirement that Rose's contact be supervised. During that time period, Rose struck Jerry in the eye with a hanger, causing permanent damage to his eye. Rose admitted to "blacking out" when enraged, and did not remember the details of her assault. Rita testified, "I'm not saying that I felt it was safe to leave [Rose] alone with the boys; but at the time she was going through the services. She was completing them. To my knowledge, I thought she was doing [what] she had to do."

Rose thereafter was prohibited from having any contact with the boys. Her sons were removed from Rita's custody as well, but they were returned to her in November 2007. In June 2007, Rose gave birth to Margaret, who was placed with her paternal uncle and his wife. Rose was ultimately convicted of third-degree aggravated assault and sentenced in April 2008 to probation conditioned on a sixty day jail sentence. By April 2008, Rose was permitted supervised visitation with the boys. Shortly thereafter, Mary was born, and Rose retained custody under Division supervision.

In 2008, Rose lacked stable housing, as she moved among multiple family members, friends, and a shelter. In mid-September 2008, Mary, then less than four months old, was removed when the Division learned she and Rose would be homeless. Mary was returned the next day when Rose moved in with a friend who agreed, pursuant to a safety protection plan, to supervise all contact between Rose and Mary. In December 2008, after Rose had repeatedly violated the safety plan, the Division removed Mary. Mary remained in the Division's custody and care. She was placed with the same paternal relatives who had custody of Margaret, but the family decided not to keep Mary. In May 2010, Mary was then placed with a new foster family, where she lived thereafter. Rose visited Mary under Division supervision, but sometimes did not attend. Mary's foster parents seek to adopt Mary and have also expressed their intention to maintain contact with Mary's sister, Margaret.

Rose also inconsistently attended behavioral health programs to address her anger and depression. She attended anger management classes through probation, received medication for anxiety and depression, and attended individual psychotherapy in 2008 with Scott Shafer, a licensed professional counselor. However, Shafer reported that Rose had made little progress that year. By the end of 2008, she reportedly missed sessions, and by mid-2009, she requested a different therapist, claiming her present therapist was biased against her. Shafer had terminated, and then rescheduled sessions with Rose twice, because of missed sessions, then terminated therapy for the third time in September 2010.

A psychological evaluation in January 2010 concluded Rose still needed individual psychotherapy if she was reunified with Mary. During an evaluation by James Loving, Psy.D., in September 2010, Rose reported she stopped attending counseling because she concluded that "whatever I was doing was not good enough." Because of her history of continued drug use and behavioral health issues, Dr. Loving opined that he could not support a reunification plan for Rose and Mary because Rose continued to pose significant risks, and had not made sufficient progress. In an evaluation with defense expert John Quintana, Ph.D., in January 2011, Rose misrepresented that she had abstained from drugs for two years. She then missed individual therapy appointments with a new psychological treatment provider in February 2011 and was terminated in May 2011 after additional absences.

Rose also failed to comply with court orders designed to protect her children. On November 16, 2009, Rose arranged to have Terry baby-sit her sons while the maternal grandmother with whom they resided was at work, in violation of a "no contact" order with regard to Terry. The "no contact" order was the result of a Division allegation that Terry sexually abused Jerry in 2006. In addition, Rose failed to adhere to the safety plan.

Both the Division's expert and defendant's expert opined at trial that Rose was not capable of parenting Mary. Dr. Loving listed the risk factors, including drug use, a history of depression, drinking, irresponsibility, and anger problems related to her mood and depression problems. Dr. Loving opined that notwithstanding these obstacles, Mary had formed a strong attachment to both Rose and Mary's foster parents, but both were insecure. He concluded that with the support of her foster parents, Mary could overcome the harm she would suffer from permanent separation from her mother. On the other hand, addressing the harm she would suffer if removed from her foster home was less certain. He stated that Mary needed permanence to form healthier attachments. He therefore supported termination of parental rights.

Defense expert Dr. Quintana, Ph.D., stated Rose needed further therapy. He testified that if Rose re-entered a substance abuse treatment program, showed a track record of negative drug screens and was making an effort at sobriety, then the process of reunification could continue. However, he would not recommend reunification if Rose were still using drugs. As mentioned, Rose withheld mention of her continued drug use during her evaluation with Dr. Quintana. Dr. Quintana also conducted a bonding evaluation of Rose and Mary, but not of the foster parents and Mary. He found a positive bond between mother and child.

On the first day of trial, Rita filed a pro se non-dissolution action for custody of Mary. Although the court did not enter a formal order granting Rita the right to intervene, the court heard testimony on the custody complaint after concluding testimony in the guardianship trial, and then issued its decision on Rita's complaint before receiving summations and rendering a decision in the guardianship case.

After Rita filed her complaint in July 2011, the court ordered the Division to evaluate the placement of Mary with Rita. Before the second day of trial in August, the Division sent a letter to Rita, ruling her out because of previous substantiated instances of neglect. Division supervisor Denise Martinelli testified that although the Division did not send a rule-out letter until August 2011, it previously considered and rejected Rita as a possible placement because of her history of substantiated abuse and neglect. Martinelli noted that in the more than four years since Mary's birth, Rita had never contacted the Division to seek Mary's placement.

The Division's decision to reject Rita as a placement considered Rita's past violations of the ordered restriction on unsupervised contact between Rose and the boys, including leaving them alone with their mother in May 2007, when Rose seriously injured Jerry's eye, and again in November 2009. The Division found that Rita violated the restriction on unsupervised contact between Rose and the boys by leaving them alone with their mother. The Division also found Rita inadequately supervised the boys by leaving them with their aunt, who was subject to a no contact order because the Division had substantiated an instance of sexually-related abuse by the aunt against one of the boys. Finally, when Division staff visited Rita's home between the first and second days of trial, it discovered Rita had only two bedrooms, one for the two boys, and one that she would share with Mary.

In support of her claim for custody, Rita testified that she visited Mary with Mary's siblings, and also saw Mary at family gatherings, such as birthday parties. She admitted that she missed a few of the scheduled visitation sessions. She insisted she would obey any restrictions on Rose's contact, notwithstanding that Rose and Rita then lived in the same apartment complex.

The court denied Rita's application for custody. The court found that Rita did not have a close relationship with Mary, and she had delayed expressing her interest in caring for Mary. The judge noted the history involving the boys. He concluded that granting Rita custody was not necessary to avoid harm to Mary.

After summations in the guardianship trial, the court found the Division had met all four prongs and terminated Rose's parental rights. The judge cited Mary's drug use in finding prongs one and two. Noting Mary's multiple placements before she was placed with her current foster parents, he concluded delaying permanence would exacerbate the harm to Mary. Judge Johnson found the Division had offered Rose an array of services. He also specifically rejected as an alternative to termination placement of Mary with Rita.

The grandmother has historically failed to honor orders of the Division, . . . and has allowed another child to be harmed with her, when the child should not have been alone with the mother.

The child has a[n] insecure attachment to [her] current . . . caretakers; but Dr. Loving says it would be harmful for the child to be separated from those parents. And, . . . I recognize that the grandmother has cared for two children, and that mom argues that the child can be appropriately placed with that grandmother who will care for those two children. I do still find . . . differences between the children in this case, and the . . . two boys that are with her. . . .

The relationship she, the grandmother, had with the child was one of occasional visitor. It was unclear as to the reason she never sought custody of [Mary] previously, as she had for the boys. . . .

[S]he filed for custody of this child . . . [in] July. And, by then this child had attached to the care taking parents. Dr. Loving says it would be harmful to remove the child from the parents, and, therefore, although, in this particular case, there may be an alternative[,] I have considered that alternative, and I find that it is in this child's best interest, by clear and convincing evidence that the child remain where she is to be adopted by her current care taking parents.

The court finally concluded that the harm of terminating parental rights would not do more harm than good. The court found that the mother would be unable to parent Mary in the near future; the grandmother, for the reasons already stated, was not an appropriate alternative; and Mary's interests would be best served by termination.

Rose appeals and argues the Division failed to meet its burden on each of the four prongs of N.J.S.A. 30:4C-15.1.

II.

In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:

(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 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. [N.J.S.A. 30:4C-15.1(a).]

These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We recognize that a parent's right to raise his or her child is constitutionally protected. Id. at 346. However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm judged by the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We do not disturb the trial court's findings unless they are so clearly mistaken or unsupported that our intervention is necessary to correct injustice. F.M., supra, 211 N.J. at 448. "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision[.]" Id. at 448-49. Applying that standard, we discern sufficient support in the record to support Judge Johnson's decision.

We address prongs one and two together. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (stating, regarding prongs one and two, "evidence that supports one informs and may support the other"). Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1(a)(1); see K.H.O., supra, 161 N.J. at 348 ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship.").

The fact that there is no evidence that Rose physically abused Mary does not preclude a prong one finding. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) ("The absence of physical abuse or neglect is not conclusive[.]") (internal quotation and citation omitted). It is sufficient to prove the risk or danger of harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001). "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." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

The second prong is aimed at determining 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.

The court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect." DMH, supra, 161 N.J. at 383. Under the second prong, a trial court determines whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.

In this case, despite her long involvement with the Division, Rose has been unable to overcome the significant obstacles to her ability to parent, including her drug abuse, and behavioral health issues. Proof of Rose's persistent, significant, and treatment-resistant drug abuse demonstrates her inability to prevent harm to a child's physical or emotional health. See K.H.O., supra, 161 N.J. at 353 (stating that "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse" may be probative of the second prong). Although "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect," Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App. Div. 2011), we perceive no error in the court's conclusion that Rose's chronic abuse of an array of substances endangered Mary's physical and emotional health.

Also relevant to the first two prongs is evidence of Rose's untreated behavioral health conditions that would interfere with her ability to provide the attention, understanding, and consistency required to protect the child. We understand that "[m]ental illness, alone, does not disqualify a parent from raising a child." F.M., supra, 211 N.J. at 450. The issue is the illness's impact on the child. "[I]t is a different matter if a parent refuses to treat his [or her] mental illness, the mental illness poses a real threat to a child," and the other parent "is unwilling or incapable of following court orders to shield her [or his] child from that danger." Ibid.

Rose's past physical abuse of her son is probative of her future conduct as Mary's parent. See J. v. M., 157 N.J. Super. 478, 493 (App. Div.) (addressing parents' treatment of other children, and noting that a court may rely on past conduct when trying to predict future conduct), certif. denied, 77 N.J. 490 (1978). Evidence of the harm that Mary would suffer if removed from her foster parents also supports the court's prong two decision. See N.J.S.A. 30:4C-15.1(a)(2) (stating harm "may include evidence that separating the child from his [or her] resource family parents would cause serious and enduring emotional or psychological harm").

In sum, we discern ample support for Judge Johnson's finding that prongs one and two were met. The evidence of Rose's persistent drug abuse, physical violence against her son, resistance to mental health treatment, and unstable living arrangements, all supported Judge Johnson's conclusion that Mary's health and development was endangered and would continue to be endangered.

Turning to prong three, defendant does not challenge the court's finding that the Division made reasonable efforts to provide services to help Rose correct the circumstances that led to Mary's placement outside the home. Rather, defendant argues the court failed to consider alternatives to termination of parental rights, specifically, the alternative of placing Mary with Rita, Mary's maternal grandmother. We disagree.

Once the Division gains custody of a child, it is also obliged to promptly search for capable relatives who may be willing to care for the child.

In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days.

The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child. [N.J.S.A. 30:4C-12.1a.]

However, once the Division determines that a relative is unwilling or unable to accept custody and care of a child, the Division is not required to re-evaluate the relative, who has a right of appeal. N.J.S.A. 30:4C-12.1b.

There is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003) ("[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement."). A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, if that is "consistent with the health, safety and physical and psychological welfare of the child and is appropriate to the individual circumstances of the child's physical or mental development." N.J.S.A. 9:6B-4b, d, f.

The record reflects the Division did consider Rita as a placement for Mary, but dismissed the possibility because of the substantiated instances of abuse and neglect. The Division formalized its rejection by its rule-out letter. There is no indication in the record before us that Rita appealed from that decision, or appealed from Judge Johnson's decision in her non-dissolution action for custody.

We also discern no error in Judge Johnson's analysis rejecting the alternative of placing Mary with Rita rather than terminating Rose's parental rights. Considering the past deficiencies in Rita's own parenting, her disobedience of prior court orders, the absence of a strong bond between Mary and Rita, and the harm Mary would suffer as a result of severing her attachment to her foster parents, the court reasonably rejected Rita as an acceptable alternative.

The case before us presents circumstances markedly different from those in M.F., supra, 357 N.J. Super. at 529, where the trial granted placement to a great aunt despite a lengthy period of foster care and evidence that the child had bonded with her foster parents. In that case, the relative never refused to take the child, indicated a willingness to care for the child only three months after the child had been placed in foster care, the relative was already caring for one of the child's biological siblings, and an expert witness testified that the child had a bond with the relative and would have little difficulty living with her. Id. at 522-25.

By contrast, Rita did not volunteer to care for Mary until the first day of trial. There were also significant questions about her capacity to care for Mary, given her substantiated violation of the safety plan designed to protect her half-brothers; her minimization of the substantiated abuse of her half-brother by Mary's aunt; her failure to protect Rose's children from Rose; and her own unstable living arrangements. Also, Mary had formed a strong, albeit insecure bond, with her foster parents. There was no evidence that she had anything comparable to that with her grandmother, with whom she visited periodically for brief periods of time, along with other family members.

Nor is the case before us governed by our decision in N.J. Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011). In K.L.W., we reversed the termination of parental rights because the Division had violated its obligations under N.J.S.A. 30:4C-12.1 by failing to consider whether the child could be placed with maternal grandparents. In that case, the grandparents were already caring for the child's siblings. At the mother's request, the Division had never contacted the maternal grandparents regarding caring for a new-born baby. Id. at 570-71. In addition, two experts admitted that the harm the child might suffer after being removed from the foster mother with whom the child had bonded could be mitigated by an appropriate caregiver. Id. at 575.

In this case, the Division fulfilled its obligations under N.J.S.A. 30:4C-12.1 to explore placement with relatives. Although the Division did not solicit Rita's interest, it nonetheless considered and rejected her because of the past substantiations. When she formally applied for custody, the Division conducted an investigation mandated by the court, and issued a rule-out letter. There also was no evidence that the harm Mary would suffer from separation from her foster parents could be mitigated if she were placed with her grandmother.

Moreover, there is no basis to conclude here, in contrast to K.L.W., that a failure to explore relative placement deprived the court of "information relevant to the best interests of the child." Id. at 581. The court had information about Rita. Her non-dissolution action for custody was tried along with the guardianship matter and she presented her case for custody. Even if one were to conclude the Division should have sent Rita a rule-out letter before August 2011, that is no basis to disturb the court's decision. "Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." Id. at 581. Therefore, we are satisfied there was sufficient evidence in the record to support the court's conclusion that prong three was met.

Lastly, we shall not disturb the court's finding, under prong four, that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. It is, concededly, a "painfully difficult" decision that is vested in the trial judge who is most familiar with the case. Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992). "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363. In balancing harms, the court must be mindful of New Jersey's strong public policy interest in permanency. Id. at 357 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor.").

There was sufficient credible evidence in the record to support the court's conclusion that terminating parental rights would not do more harm than good. The court credited Dr. Loving, who supported the court's prong four analysis.

The court noted that Dr. Quintana's opinion was based in part on his erroneous understanding that Rose had stopped using drugs.

Dr. Loving found that Mary had positive, but insecure attachments to both her mother and her foster parents. However, neither Dr. Loving, nor Dr. Quintana believed Rose was currently able to parent Mary. Mary needed permanence, according to Dr. Loving, to form more secure attachments. She was almost three-and-a-half when Judge Johnson rendered his decision in September 2011. Mary had been in foster care since December 2008. See N.J.S.A. 30:4C-15(d) (stating Division required to seek termination of parental rights if unable for a year after placement in foster care to ameliorate the circumstances leading to child's removal). Although Dr. Loving acknowledged that there were risks to both placements, he found that it would be better for Mary to stay with her foster parents, and it would increase the risk of harm to the child if she were removed from her current caretakers. We find no error in the court's conclusion that prong four was met.

Affirmed.


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