January 7, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
J.V., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF R.S.V., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-143-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
Before Judges Axelrad and Haas.
Defendant J.V. (Juan) appeals from the January 26, 2012 judgment of
guardianship of the Family Part terminating his parental rights to his
daughter, R.S.V. (Regina) born on November 2, 2010.*fn1
He argues the Division of Youth and Family
Services*fn2 (Division) did not prove the third prong
of the termination statute by clear and convincing evidence. The Law
Guardian supports the termination on appeal as it did before the trial
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of Juan's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm substantially for the reasons stated by Judge Garry J. Furnari in his comprehensive oral opinion of January 20, 2012.
Juan and E.G. (Ellen) are the unmarried parents of four children, K.V. (Kate), age nine at the time of trial, X.V. (Xander) born in 2006, J.A.V.-G. (James), born in 2009, together with Regina, who is the only child involved in this appeal. Each parent has an extensive history of substance abuse. The Division first became involved with the family after Xander was born and both he and Ellen tested positive for opiates. Juan was addicted to heroin. Despite the services provided to them by the Division, neither parent was able to overcome their addictions or to care for their son. In 2008, Juan and Ellen's parental rights to Xander were terminated and he has been adopted by the foster parents who had cared for him since his birth.
In 2009, James was born addicted to methadone. The Division obtained custody to him prior to his release from the hospital and he was placed with Xander's adoptive parents. Juan and Ellen's parental rights to James were terminated in 2011 and we recently affirmed the trial judge's determination in an unpublished decision. N.J. Div. of Youth & Family Servs. v. J.V., No. A-5041-10 (App. Div. November 15, 2012) (slip op. at 3). James' foster parents will now be able to adopt him and he will continue to live with his brother Xander.
In May 2009, Juan suffered a stroke, which left him paralyzed and confined to a wheelchair. He continues to have uncontrolled seizures and he remains dependent on methadone. He does not contest that he is incapable of caring for a child.
After the guardianship complaint concerning James had been filed, the Division learned that Juan and Ellen had an older daughter, Kate, who was living with Ellen's sister, H.P. (Henrietta). When Kate was three years old, Ellen told Henrietta that she was going into a drug program and needed to leave Kate in her care. Ellen never returned for the child. When Kate was four, Henrietta testified she went to court to seek custody, but was told by the judge she had to report what had happened to the Division. She did not do so and, the next year, was granted custody of Kate by a different judge.
Henrietta did not know that Juan and Ellen had two other children until a Division caseworker contacted her in October 2010. Ellen and Juan expressed an interest in having Henrietta assume custody of James and the Division investigated this possibility. While the process was underway, a caseworker told Henrietta not to leave Kate with either Juan or Ellen. Henrietta ignored this direction and admitted to leaving the child in Ellen's unsupervised care. A criminal background check revealed that Henrietta had previously been arrested on a theft charge in Tennessee.
In February 2011, the Division sent Henrietta a "non-placement letter" advising her it would be in James' best interest to remain in his current placement with Xander, where he had lived since being discharged from the hospital. In addition, Henrietta's apartment was too small to accommodate both James and Kate. Henrietta was also not a permanent resident and was in the United States on a temporary work visa. Henrietta did not appeal this determination.
On November 2, 2010, Regina, the child who is the subject of the current appeal, was born preterm at thirty-two weeks. She weighed less than three pounds and had methadone in her system. Ellen told the Division she was unaware that she was pregnant, received no prenatal care and had been using "street methadone." Ellen left the hospital against medical advice the day after Regina was born.
Juan and Ellen proposed that Henrietta be granted custody of Regina and Henrietta expressed a willingness to do so. Regina remained in the NICU until December 10, 2010, where she was treated for various medical issues, including respiratory problems and Hepatitis C. The Division placed Regina with the licensed foster parents who had been caring for her brothers, Xander and James. The foster home consists of two parents and the mother stays at home to care for the children.
The Division informed Henrietta that Regina was "considered medically fragile" and needed a Specific Specialized Home (SHPS home) because of the drug exposure and low birth weight. Therefore, Henrietta would be required to become a licensed foster parent in order to take custody of Regina. Henrietta obtained a larger apartment and enrolled in a PRIDE class, which is a requirement for licensure.
The Division's caseworkers met with Henrietta to fully explain Regina's special needs and the services the child required. The Division also arranged for Henrietta to meet with the child's nurse. Regina needed five hours of in-home physical and occupational therapy each week to alleviate muscle stiffness, which inhibited her ability to turn her head or move her upper extremities. She currently received this therapy with James, who has similar disorders. The foster parents also provided massage therapy to Regina for approximately five hours per day. She was considered developmentally delayed. Regina's doctor anticipated the child would "need close supervision from her caretakers and regular medical care to optimize her outcome." Her caretaker would be required to learn "therapy techniques and apply them at home."
As of August 2011, Henrietta had still not provided all of the documentation needed for the Division to conduct the required home study. She submitted the medical reference without a doctor's signature and two of her personal references were returned, marked "wrong address." In September, Henrietta requested an extension to submit these documents but, as of October 2011, the application materials had still not been completed.
In November 2011, shortly before the start of the guardianship trial, Henrietta withdrew her licensure application. The Division sent her a formal non-placement letter "based on [Henrietta's] decision to withdraw [her] home study." A few days later, however, Henrietta submitted the required medical form, but she did not ask that her home study be reopened.
On December 1, 2011, the Division sent Henrietta a second non-placement letter, stating the following reasons for the Division's decision for not placing Regina in Henrietta's care:
1) Significant concerns as to your ability to satisfactorily meet the child's considerable developmental and medical needs (specifically, her lack of trunk support and ongoing stiffness in her extremities; her inability to crawl or walk at one year of age; her inability to swallow textured foods; high risk for hearing loss; and continued positive test results for Hepatitis C);
2) Your irregular work schedule and how that would impact on your availability to be present at and participate with, in-home medical/therapeutic appointments, which would be for a minimum of five hours per week. These therapies would include but are not limited to, two hours of Occupational Therapy; two hours of Physical Therapy and one hour of Developmental Intervention.
3) The absence of an identified and reliable back-up person that would need to be trained (as would you), and who would be available in your absence.
Henrietta did not appeal this determination.
At the guardianship trial, Henrietta testified she terminated the home study to give herself more time. She acknowledged she was aware of the deadlines and the impending trial. She also conceded she had failed to appeal the non-placement letter.
Henrietta stated the Division had apprised her of Regina's special needs. However, she believed the Division had exaggerated the extent of Regina's medical issues and might also be overstating the level of services the child required. Significantly, Henrietta has no medical training and her opinion was based on the five or six visits she had with Regina in 2011.
Henrietta works forty-hours per week, but has no fixed schedule. She will not be home to be present or participate in the child's therapy sessions. Henrietta's back up plan would be for her own daughter to care for Regina in her absence, even though the daughter attended college and worked part-time. Henrietta admitted she still left Kate unsupervised in Ellen's care because she no longer believed Ellen was using drugs.
Based upon the evidence presented at trial, Judge Furnari found the Division had demonstrated by clear and convincing evidence that Regina's safety, health and development had been and will continue to be endangered by the parental relationship with Juan and Ellen and that neither parent was willing or able to eliminate the harm facing Regina.
Judge Furnari also found the Division had met the third prong of the statutory test and held it had thoroughly considered and properly rejected Henrietta as a possible placement for Regina. The judge noted that Henrietta had abruptly cancelled the home study, rather than comply with the Division's reasonable requests for documentation concerning her medical status and her ability to care for a medically fragile child. He also found support for the Division's determination that Henrietta would not be able to meet all of the child's needs. Henrietta works full-time, with no set hours, and would not be available to provide the in-home therapy Regina requires. The judge further found Henrietta had no viable back-up plan since it was unrealistic to expect that her daughter in college could take on this responsibility if needed.
Judge Furnari thus concluded it would be in Regina's best interests to remain in her current placement, with her two brothers. This was the only home the child has known, her foster parents are aware of her special needs and trained to address them, and they plan to adopt her so can achieve permanency with her siblings. This appeal followed.
Juan raises the following issues on appeal*fn3
THE TRIAL COURT ERRED BY TERMINATING THE FATHER'S PARENTAL RIGHTS BECAUSE ALTERNATIVES TO TERMINATION AND ADOPTION, INCLUDING PLACEMENT WITH A MATERNAL AUNT, WERE NOT PROPERLY CONSIDERED.
POINT II THE TRIAL COURT ERRED BY MAKING FINDINGS OF FACT WITHOUT THE TESTIMONY OF THE CARE GIVERS OR TESTIMONY OF ANY PROFESSIONAL, AND MISSATED THE LAW IN FINDING THAT THE DIVISION NEED NOT ADVISE PROSPECTIVE CARE GIVERS OF THE CHILD'S SPECIFIC NEEDS.
POINT III THE TRIAL COURT ERRED BY TERMINATING THE FATHER'S PARENTAL RIGHTS BECAUSE A FINDING THAT THE FOURTH PRONG OF THE BEST INTERESTS TEST HAS NOT BEEN MET DOES NOT BY ITSELF MEAN THAT . . . PARENTAL RIGHTS SHOULD BE TERMINATED.
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.
"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(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 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).
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that Regina's best interests required termination of Juan's parental rights.
Juan does not dispute the judge's findings under the first two prongs of the statutory test. He concedes that due to his serious drug addiction and physical disability, he is unable to care for Regina. He thus limits his argument to the third prong of the test and contends the judge erred in finding that Henrietta was not an appropriate alternate placement. We do not agree.
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 shall 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 or 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 Divisions'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 demonstrates the Division thoroughly considered Henrietta as a placement for Regina, but properly dismissed the possibility because she did not fully appreciate the extent of the child's special needs; had an irregular work schedule which would prevent her from being present and participating in the extensive therapy sessions; and lacked a reliable back-up plan for providing care to Regina in her absence. The Division formalized its rejection by its non-placement letter. Henrietta never appealed from that decision. We discern no error in Judge Furnari's analysis rejecting the alternative of placing Regina with Henrietta rather than terminating Juan's parental rights.
Contrary to Juan's assertions, the case before us presents circumstances markedly different from those in N.J. Div. of Youth & Family Servs. 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, who were already caring for the child's siblings. At the mother's request, the Division never contacted the maternal grandparents regarding caring for a newborn 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 Henrietta. It initiated an assessment of her home, offered PRIDE training classes and visitation to her, and met with her to discuss the case and Regina's special needs. However, Henrietta continually failed to provide the required licensure documentation in a timely fashion and she ultimately withdrew her application for a home study. Henrietta's work schedule did not permit her to provide the care Regina needs and she did not have an appropriate back-up plan.
The record also amply supports the judge's finding that the Division provided appropriate medical information to Henrietta regarding Regina's special needs, including medical records outlining the treatment the child was receiving and the evaluations she has undergone. Because the need for, and the provision of, this care was well documented, there was no need for the Division to bring in the child's caregivers to confirm what was already clear - - the child has special needs which require specialized care by individuals who are trained to provide it.
Regina is currently receiving that care in the only home she has ever known. She lives with her two brothers and her foster parents intend to adopt her. When this occurs, she will achieve the permanency she needs and deserves. The record in this case fully supports the judge's conclusion that termination of Juan's parental rights will not cause Regina more harm than good.