May 15, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
M.N.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF L.A.R., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-119-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Joseph F. Kunicki, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Vonnetta Fermin, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.A.R. (Cory Hadley Cassar, Assistant Deputy Public Defender, on the brief).
Before Judges Grall and Koblitz.
M.N.R. appeals from the May 23, 2012 order terminating her parental rights to her son, L.A.R. (Leroy), who was born in September 2010. M.N.R. argues that the trial judge erred in considering evidence from a prior guardianship trial and other evidence concerning M.N.R.'s older children. She also argues that the judge did not consider all of the evidence submitted in this trial. The law guardian supported termination in the trial court and, on appeal, joins the Division of Youth and Family Services (Division) in urging us to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm.
M.N.R. either did not know or refused to divulge the identity of Leroy's father. Leroy is M.N.R.'s fourth child. At the time of Leroy's birth, her older children were not in her care. When M.N.R. was a child, she was in the Division's legal custody living with her maternal grandmother, when she had her first child at the age of sixteen. Due to M.N.R.'s emotional problems, this child was placed and remains in the care and legal custody of M.N.R.'s grandmother. M.N.R. had her second child at the age of eighteen. M.N.R.'s maternal aunt was ultimately granted Kinship Legal Guardianship of this child. M.N.R.'s third child was born in 2002 when she was nineteen. After lengthy litigation including a seven-day trial, M.N.R.'s parental rights to her third child were terminated on January 31, 2011. We affirmed that decision in a detailed opinion relating M.N.R.'s long-standing psychiatric problems, for which she has complied with treatment only sporadically, as well as the Division services offered to her, including individual and group therapy at various locations, GED classes, parent aide services, numerous evaluations and medication monitoring. Div. of Youth & Family Servs. v. M.N.R., No. A-3458-10 (App. Div. Apr. 9, 2012). As the records relating this prior history were admitted in this trial, we incorporate here the facts set forth in our prior opinion. Id . at (slip op. 3-16).
When Leroy was born, he was placed in the care and custody of the Division shortly after birth. The Division placed Leroy with his current resource parent. The Division provided M.N.R. visitation with Leroy three times a week, and offered mental health treatment and evaluations. Due to her mental health problems, she was determined to be "too emotionally unstable, too irritable, too aggressive, and particularly too cognitively impaired in the areas of response inhibition, impulse control, problem solving and judgment to be an effective, fit parent[.]" A bonding evaluation unsurprisingly found that Leroy was not bonded to M.N.R. He was profoundly attached to his resource parent, who wishes to adopt him.
The standard of review in parental termination cases has been established by the New Jersey Supreme Court:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. 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 to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations and internal quotation marks omitted).]
The Supreme Court has "consistently imposed strict standards for the termination of parental rights." See In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citations omitted). When seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following factors:
(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.
These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (citations and internal quotation marks omitted). "Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347 (1999) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
M.N.R. raises the following issues on appeal:
POINT I: THE COURT ERRED IN ADMITTING EVIDENCE THAT WAS ADMITTED IN PRIOR GUARDIANSHIP PROCEEDINGS.
POINT II: THE TRIAL COURT DID NOT CONSIDER ALL OF THE EVIDENCE ADMITTED.
M.N.R. does not argue that the Division failed to prove any of the four prongs necessary to terminate parental rights by clear and convincing evidence. Rather, without citing any supportive case law, she argues that N.J.R.E. 403 and 404 prevent the judge from considering evidence accumulated during M.N.R.'s interaction with the Division, which involved her other children.
We examine evidentiary decisions of a trial judge under an abuse of discretion standard. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (instructing that a trial judge's rulings under N.J.R.E. 403 should not be overturned on appeal unless there is a palpable abuse of discretion, a "finding . . . so wide off the mark that a manifest denial of justice resulted" (citations omitted)).
As pointed out by the law guardian, our Supreme Court has held under the doctrine of invited error "that issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (citation omitted).
At trial, M.N.R. did not object to the admission of voluminous exhibits presented by the Division. Although counsel did object to the Division caseworker testifying about all of the services that M.N.R. received prior to Leroy's birth, in summation, defense counsel stated
I did not object to any of the exhibits to any significant extent because I do think that it was important for the [j]udge, for the [c]ourt just to see [defendant] in her entirety, you know.
Thus, we treat with skepticism M.N.R.'s late decision to object to the consideration of records relating to her older three children.
New Jersey case law is replete with the acknowledgement of the importance of considering a parent's past behavior towards other children when assessing current parenting capacity. As we have noted, "Predictions as to probable future conduct can only be based upon past performance . . . . We cannot conceive that the Legislature intended to guarantee to parents at least one chance to . . . abuse each child." J. & E. v. M. & F., 157 N.J.Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978). See also New Jersey Div. of Youth & Family Servs. v. Robert M., 347 N.J.Super. 44, 68 (App. Div.) (indicating that the mistreatment of one child is a harbinger of danger to other children), certif. denied, 174 N.J. 39 (2002); New Jersey Div. of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551, 557 (App. Div. 2010) (concluding "that evidence of prior domestic violence committed by [the] defendant-father against his ex-wife and the two children of a prior marriage was admissible . . . to prove the risk of harm to these children"); and N.J.S.A. 9:6-8.46 (stating that in a Title 9 hearing "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child").
Thus, the trial judge's consideration of the Division's evidence concerning M.N.R.'s interaction with her older children was relevant and probative of the likelihood that she would be able to successfully parent Leroy in the future.
M.N.R. also argues, somewhat contradictorily, that the trial judge erred by not considering all of the evidence submitted by the Division. The judge indicated that he received approximately 1600 pages of evidence. He told counsel he would read any documents highlighted by them, but would not read every page presented by the Division. This caution to counsel was salutary and realistic, as it reminded counsel to focus the judge's attention on the most salient evidence.
The judge's findings were based on "adequate, substantial and credible evidence." New Jersey Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433 (App. Div. 2002) (citation omitted).