June 7, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
K.P.W., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.P.W., a Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-81-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.P.W. (Jeffrey R. Jablonski, Designated Counsel, on the brief).
Before Judges Graves, Espinosa, and Guadagno.
Defendant K.P.W. appeals from a December 20, 2011 judgment of guardianship terminating her parental rights to her daughter, A.P.W. The judgment also terminated the parental rights of the child's father, R.S., Sr. The Law Guardian supports the trial court's decision to terminate K.P.W.'s parental rights. For the reasons that follow, we affirm.
K.P.W. and R.S., Sr. are the biological parents of two children: A.P.W., born March 6, 2009, is now four years old; and R.S., Jr., born August 26, 2007, is now five. K.P.W. is also the mother of two older daughters: B.W., born April 11, 2002, and H.W., born April 30, 2004, who are in the custody of their father, S.W. In addition, K.P.W. and M.S. are the parents of a daughter Mo.S. born on July 21, 2011, and a son Ma.S., Jr. born on May 4, 2012. These two children are in the custody of K.P.W. and M.S.
The Division of Youth and Family Services (DYFS or the Division) first became involved with K.P.W. in June 2007, when it received a referral from The Learning Place, a daycare center in Hackensack, alleging that B.W. and H.W. frequently arrived "in dirty clothes and without enough food." On June 26, 2007, a Division caseworker met with K.P.W. regarding the allegation. During this meeting, K.P.W. "denied any mental health, substance abuse, or domestic violence history." The caseworker observed that the home was "clean and neat, " stocked with "plenty of food, " and that B.W. and H.W. were clean and "appear[ed] to be happy and well cared for." Accordingly, the caseworker concluded that the allegation of neglect was unfounded.
However, during the course of its investigation, the Division learned from the Saddle Brook Police Department that there were reports of domestic violence involving K.P.W. and R.S., Sr. The police reports can be summarized as follows:
October 1, 2006: K.P.W. told the police that R.S., Sr. sexually assaulted her at knifepoint on September 29, 2006, and again on September 30, 2006, but she did not want to sign criminal complaints because there was a possibility that she was pregnant with R.S., Sr.'s child;
November 19, 2006: K.P.W. reported to the police she was sexually assaulted by R.S., Sr. in her apartment on the previous evening;
December 23, 2006: K.P.W. reported she had been arguing with R.S., Sr. and he kicked the door in to gain entry to her apartment;
January 9, 2007: R.S., Sr. was arrested after he gained entry to K.P.W.'s apartment through a window;
March 4, 2007: K.P.W. told the police her ex-boyfriend came to her apartment in violation of a temporary restraining order and assaulted her "by pulling her hair and pushing her head into the wall";
March 5, 2007: K.P.W. told police that during the incident on March 4, 2007, she was sexually assaulted by R.S., Sr.;
May 5, 2007: The police went to K.P.W.'s apartment in response to a third-party complaint because K.P.W. and R.S., Sr. were having a loud argument;
May 11, 2007: K.P.W. reported R.S., Sr., her live-in boyfriend, was missing "and may be in need of mental health assistance";
June 25, 2007: The police responded to a third-party complaint because K.P.W. and R.S., Sr. were having a verbal argument;
June 28, 2007: R.S., Sr.'s mother reported her son and K.P.W. were "fighting, " but when the police arrived at K.P.W.'s apartment, both parties said they were only talking.
On July 12, 2007, a Division caseworker met with K.P.W. to address the Division's concerns regarding the police reports. K.P.W. acknowledged that it was "not good for her children to be around this kind of behavior." Accordingly, K.P.W. and the Division initiated "a safety plan, " which prohibited R.S., Sr. from having any contact with K.P.W. and her children until the Division could conduct psychological assessments of both K.P.W. and R.S., Sr. Therefore, the Division kept the case open for services, even though the initial referral was not substantiated.
Heather Diamond, a licensed clinical social worker at the Center for Evaluation and Counseling, conducted a risk assessment of K.P.W. and R.S., Sr. on July 19, 2007, and July 25, 2007. At that time, K.P.W. had custody of her two daughters from a previous relationship, B.H. and H.W., and she was eight-months pregnant with R.S., Sr.'s child, R.S., Jr. Diamond noted that K.P.W. and R.S., Sr. had "a significant history of domestic violence, " and the purpose of the evaluation was to assess their "ability to parent and to determine what services, if any, would be beneficial for them." Diamond summarized her findings as follows:
This assessment concluded that [R.S., Sr.] is a high-risk parent for child abuse and neglect who should be supervised with his unborn child. [K.P.W.] is not an appropriate candidate to supervise these visits. Both parents are immature, irresponsible and dependent, and have a history of poor judgment and prioritizing their own needs over the needs of others. They both also lack insight into their very dysfunctional relationship. [R.S., Sr.] is impulsive, has difficulty learning from his mistakes and confuses anger with affection. [K.P.W.] has a significant history of poor protective judgment and continuously places herself in danger by reconciling with [R.S., Sr.]. It is likely that [K.P.W.] perceives [R.S., Sr.'s] obsessive and abusive behavior as loving and that it meets her needs for attention and feeling special. It is recommended that both parents participate in Alternatives to Domestic Violence, parenting classes and individual psychotherapy.
After R.S., Jr. was born on August 26, 2007, the Division received a referral from a caseworker, who reported R.S., Sr. "associates anger with love, " and K.P.W. "sees the boyfriend's obsession and abuse toward her as love." The caseworker asked the Division to investigate "and assess for services."
On September 5, 2007, the Division filed an order to show cause and verified complaint for the care and supervision of K.P.W.'s three children while they remained in K.P.W.'s legal and physical custody. The court granted the Division's application and ordered that all contact between the children and R.S., Sr. was to be supervised by the Division. The court also ordered K.P.W. and R.S., Sr. to attend domestic violence counseling, psychotherapy, and parenting classes; required R.S., Sr. to complete a substance abuse evaluation; and directed K.P.W. to cooperate with homemaker services and to participate in Families First.
About a month later, on Tuesday, October 9, 2007, the Division received a referral from R.S., Sr.'s mother. She reported that while her son and K.P.W. were in a motel "for the last five days, " K.P.W. left her three children with her twin sister, who had "a DYFS history of her own with parenting concerns." The Division also learned that R.S., Sr. assaulted S.W., the father of B.W. and H.W., on September 26, 2007, while S.W. was in a car with K.P.W. and her three children.
When she was interviewed, K.P.W. admitted she spent a night with R.S., Sr. at the airport motel but denied she left her children with her sister. K.P.W. initially indicated that the children were cared for by S.W. However, in a follow-up interview on October 10, 2007, K.P.W. denied that she stayed with R.S., Sr. at the motel. Given the inconsistencies regarding K.P.W.'s whereabouts and who was caring for her children, the Division initiated an emergency removal without a court order pursuant to N.J.S.A. 9:6-8.29.
The Division filed for custody of B.H., H.W., and R.S., Jr. on October 11, 2007. That same day, the court found "the removal of the children was required" because the children's parents "could not provide consistent information as to who provided care for the children and could not provide consistent information regarding the allegations placing the children at risk of harm." On December 20, 2007, K.P.W. waived her right to a fact-finding hearing and stipulated that her children were removed from her custody on October 10, 2007, "due to inadequate child care which placed the minors at risk of harm."
While her children were in foster care, K.P.W. participated in services recommended by DYFS including domestic violence counseling and a twelve-week parenting education program. According to a December 27, 2007 report from the parenting program, K.P.W. acknowledged that her children were removed from her custody because "she was with her son's father for five days and lied about it."
As a result of K.P.W.'s compliance with court ordered services, she was reunified with her two older children on March 5, 2008. The Division planned to reunify K.P.W. with R.S., Jr. once she established "a routine" with B.W. and H.W. As a condition of reunification, R.S., Sr. was restrained from K.P.W.'s residence.
Approximately one month later, in early April 2008, a Division caseworker made an unannounced visit to K.P.W.'s home. When the caseworker arrived, she saw R.S., Sr. and K.P.W. leaving K.P.W.'s apartment. After the caseworker identified herself, R.S., Sr. left. When confronted about R.S., Sr.'s presence, K.P.W. stated that he "showed up" without her knowledge and denied he was living there. However, when the caseworker entered the apartment, she saw "men's boots and clothes, " which did not belong to K.P.W. K.P.W. also disclosed to the caseworker that she had bailed R.S., Sr. out of jail, following his incarceration for a domestic violence dispute in which he "threatened to set her house on fire."
On April 7, 2008, B.W. and H.W. were once again removed from K.P.W.'s care and placed in the protective custody of the Division. K.P.W. never regained custody of her three children. B.W. and H.W. were eventually placed in the legal and physical custody of their father, S.W. Following a guardianship trial, the court terminated K.P.W.'s and R.S., Sr.'s parental rights to R.S., Jr., and he was adopted.
After the children's removal in April 2008, the Division continued to offer therapy to K.P.W. at the Audrey Hepburn Children's House (Children's House). Among other things, the therapy addressed the children's exposure to domestic violence, and K.P.W.'s lack of insight regarding her dysfunctional relationship with R.S., Sr.
K.P.W.'s fourth child, A.P.W., was born on March 6, 2009, at the White Plains Hospital in White Plains, New York. After the child's birth, a social worker at the hospital contacted the Division. The social worker reported that K.P.W. denied having a history with the Division. However, K.P.W.'s father worked at the hospital and stated he was "not comfortable" with his daughter "having another baby in her care" because she had an open case with the Division in New Jersey.
On March 12, 2009, the Division was granted custody of A.P.W. due to "continued concerns regarding [K.P.W.'s] ability to properly care for the newborn, instability with living arrangements, and potential endangerment of the safety and welfare of her minor children, including the newborn." A paternity test confirmed that R.S., Sr. was the father of the child, and A.P.W. was ultimately placed in the same home as her brother on October 16, 2009. A.P.W. continues to reside with the same family that adopted R.S., Jr.
The Division referred K.P.W. to the Center for Evaluation and Counseling for a second evaluation, which was conducted by Heather Diamond on April 6, 2009, and May 29, 2009. The purpose of the evaluation was to assess K.P.W.'s ability to parent. Diamond concluded that K.P.W. was not ready to resume parenting her children:
[K.P.W.] continues to present as an immature, irresponsible, and dependent parent with poor judgment and a tendency to be deceitful. [She] also presents as a narcissistic parent who prioritizes her own needs over the needs of others, including her children. Given her childhood history of abuse, neglect, and abandonment, [K.P.W.] is likely to have difficulty bonding to her children and to develop healthy, reciprocal relationships without significant therapeutic intervention and a sincere desire to change.
On October 6, 2009, K.P.W. called the Division and told a caseworker that S.W., the father of B.W. and H.W., had "been breaking into her home while she [was] sleeping, and having sexual intercourse with her while she [was] sleeping, " but she was unsure whether she would report the matter to the police. K.P.W. also stated "she thought [B.W. and H.W.] would go into her custody if [S.W.] would get arrested." The Division subsequently interviewed S.W., and he informed the Division the sex was consensual. He also said K.P.W. was "crazy."
In a letter to the Division dated October 26, 2009, a clinical social worker at the Children's House recommended that K.P.W.'s treatment be terminated:
In the February 17, 2009 report, [K.P.W.'s] failure to make gains is documented. She is a woman with poor judgment who is manipulative. She has allowed [S.W.] to gain custody of their two daughters despite the fact that he would allegedly rape her when they were living together. She is an immature woman who chronically fabricates information to the Division, previous therapists and her paramours. Due to her minimal progress in therapy at [Children's House], it is recommended that her treatment be terminated.
The same letter noted that K.P.W. had been seeing Curtis W. Branch, a psychologist, "for weekly psychotherapy since early September 2009." In a letter to the Division dated August 3, 2010, Dr. Branch stated that he scheduled ten appointments with K.P.W. during the period from February 21, 2010 to May 18, 2010, and K.P.W. kept six of the appointments. Dr. Branch also stated K.P.W. was "struggling to address" the following self-defeating behaviors: "blaming others for her self-defeating behaviors; not [taking] responsibility for failing to follow through with self-help actions that need to be completed; and poor quality interpersonal relationships within her family circle and how they adversely affect her."
On February 25, 2010, the court determined the Division's plan for termination of parental rights followed by adoption was appropriate and acceptable. The court found it would not be safe to return A.P.W. to K.P.W.'s custody in the foreseeable future because K.P.W. "failed to make the necessary progress required to achieve a successful reunification." The court also noted that R.S., Sr. failed to complete substance abuse treatment and failed to participate in therapy. The complaint for guardianship was filed on April 15, 2010.
The guardianship trial commenced on March 23, 2011, and concluded on August 4, 2011. The Division presented the testimony of Kim Grunstra, an adoption case manager, and Yocasta Garcia, a family service specialist. The Division also presented expert testimony from Heather Diamond, LCSW, and Donna LoBiondo, Ph.D. K.P.W. testified on her own behalf and presented the testimony of her expert, Ronald Silikovitz, Ph.D.
When asked about the Division's concerns regarding K.P.W. and her children, Grunstra testified there were "concerns regarding [K.P.W.'s] judgment, poor decision making with regards to relationships and men in her life, with regards to how she's proceeded with services, and also how those events would impact on the safety of her children." In addition, K.P.W. had a history of "lying to the Division." Grunstra testified there were no appropriate maternal or paternal relatives to care for A.P.W., and the foster family that was caring for R.S., Jr. and A.P.W. expressed a commitment to adopt both children.
The Division also presented the testimony of Heather Diamond, who evaluated K.P.W.'s ability to parent on two separate occasions, and Dr. LoBiondo, who conducted a psychological evaluation of K.P.W. on August 25, 2010 and October 2, 2010. Dr. LoBiondo also conducted bonding evaluations on August 25, 2010, to assess the degree and quality of A.P.W.'s attachment to her natural mother and her foster parents.
Dr. LoBiondo, like Heather Diamond, concluded that K.P.W. could not safely parent A.P.W. In addition, based on her bonding evaluations, Dr. LoBiondo concluded that the termination of K.P.W.'s parental rights would not cause more harm than good.
K.P.W.'s expert, Dr. Silikovitz, acknowledged that A.P.W. viewed her foster parents as her "psychological parents, " and he agreed "breaking a sibling bond is generally not a healthy thing to do." Nevertheless, Dr. Silikovitz concluded K.P.W. was making progress in overcoming her "personality issues and truthfulness issues" and testified she was "fit and competent to take care of [A.P.W.]."
When K.P.W. testified, she acknowledged that her relationship with R.S., Sr. was "volatile" and "unhealthy, " but she also maintained that the relationship ended "[t]wo years ago." K.P.W. also testified she was attending weekly therapy sessions with Dr. Branch, and he was helping her "understand certain things [regarding] certain people [she] should steer away from."
The trial court set forth its findings and conclusions in a forty-seven-page written decision on December 20, 2011. The court found the Division had proven by clear and convincing evidence that termination of K.P.W.'s parental rights followed by adoption was in the best interests of A.P.W.
On appeal, K.P.W. presents the following arguments:
THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
(B) K.P.W. IS WILLING OR ABLE TO ELIMINATE THE HARM FACING HER CHILD.
(C) CLEAR AND CONVINCING EVIDENCE DID NOT EXIST THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP K.P.W. CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME.
(D) DYFS DID NOT PREVAIL ON PRONG FOUR OF N.J.S.A. 30:4C-15.1(a) BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.
THE COURT ERRED IN PERMITTING DYFS'S EXPERT TO OFFER OPINION TESTIMONY BASED UPON HER REVIEW OF THE TREATMENT NOTES OF K.P.W.'S THERAPIST, IN VIOLATION OF N.J.R.E. 703 (Not Raised Below).
THE COURT ERRED IN NOT ADMITTING INTO EVIDENCE A REPORT FROM DEFENDANT-APPELLANT'S THERAPIST (Partially Raised Below).
We conclude from our review of the record and the applicable law that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). Pursuant to the best-interests-of-the-child standard, initially formulated by the Court in
N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), the State must establish each of the following requirements by clear and convincing evidence before parental rights may be severed:
(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 requirements are neither discrete nor separate. They "overlap with one another to provide a comprehensive standard that identifies a child's best interests."
In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." Ibid. (internal quotation marks and citation omitted). "[T]he purpose of termination is always to effectuate the best interests of the child, not the punishment of the parent." Id. at 350.
In the present matter, the trial court made detailed findings regarding the evidence adduced at trial and concluded A.P.W.'s "health and development have been and will continue to be endangered by the continuation of the parental relationship with K.P.W." In addition, based on K.P.W.'s "chronic fabrications" and "inability to gain insight through extensive therapy, " the court determined that K.P.W. was "unable to eliminate the harm facing the child." The court also found that the Division met its burden to satisfy the third statutory requirement because it "provided numerous services to address [K.P.W.'s] parenting and psychological issues, " and there were "no alternatives to termination of parental rights." Finally, based on the testimony of Heather Diamond and Dr. LoBiondo, the court determined the termination of K.P.W.'s parental rights would not cause more harm than good.
The scope of our review is limited. We must determine whether the trial court's findings are "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing
Rova Farms Resort, Inc. v. Investors I ns. Co. of Am., 65 N.J. 474, 484 (1974)). "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."
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
We conclude from our examination of the record that the trial court's findings and conclusions are supported by clear and convincing evidence, and that the trial court correctly applied the applicable legal standards. Accordingly, the judgment terminating K.P.W.'s parental rights to A.P.W. is affirmed substantially for the reasons stated by Judge Bonnie J. Mizdol in her comprehensive written decision on December 20, 2011.