June 25, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
L.Z. and B.S., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF B.S., Minor
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-88-11.
Joseph E. Krakora, Public Defender, attorney for appellant L.Z. (Dianne Glenn, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant B.S. (Sandra Bober, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Labinot A. Berlajolli, Special Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.S. (Jennifer Holsey, Assistant Deputy Public Defender, on the brief).
Before Judges Koblitz and Accurso.
Mother L.Z. and father B.S. appeal from the June 25, 2012 judgment terminating their parental rights to their son, Billy, who was born in 2008. Billy has resided with his maternal aunt and uncle since he was eighteen months old, and they want to adopt him. The Law Guardian urges us to affirm. Pursuant to N.J.S.A. 30:4C-15.1(a)(1)-(4), B.S. argues that the Division failed to establish grounds for termination under any of the statute's four prongs. L.Z.'s arguments all fall within prong three. We affirm substantially for the reasons expressed in Judge John Conte's thorough fifty-five page written opinion of June 25, 2012.
The parents, who married on January 11, 2011, while this litigation was ongoing, are both Polish. L.Z. speaks English, but B.S. does not, which made it difficult for the New Jersey Division of Youth and Family Services (Division) to provide services to him. Nonetheless, both parents were provided many opportunities to address their issues with alcohol and domestic violence that led the Division to intercede. L.Z. complied with many services, but was unable to remediate her alcohol problem. B.S. was not compliant and continued to abuse alcohol and engage in domestic violence.
On August 5, 2009, the Division received a referral from Hackensack University Medical Center after L.Z. was brought to the emergency room by ambulance due to injuries she sustained by falling down her apartment steps on August 2. Her blood alcohol level was .245 and Billy's whereabouts were unknown at the time of the incident. The Division caseworker was advised by hospital staff that L.Z. had several bruises on her legs that were in various stages of healing. L.Z. was diagnosed with numerous injuries, including lacerations and a collapsed lung (pneumothorax). While L.Z. initially stated that her husband has pushed her around, she later changed her story and explained that none of her injuries were a result of domestic violence.
On August 6, 2009, a Polish-speaking Division caseworker met with B.S. at the hospital. B.S. told the caseworker that he did not know why or how L.Z. fell, he was not home at the time, and neither of them had a drinking problem. L.Z. admitted to drinking at the time of the fall and to drinking "to make herself happy" at least twice per week. L.Z. also stated that she had lost her driver's license due to a driving under the influence conviction in Newark several years before. Additionally, L.Z. told the caseworker that B.S. drinks whiskey, vodka or beer regularly, and is drunk every weekend. Moreover, L.Z. insisted that she would not go for alcohol treatment as she did not feel she had a problem, but that B.S. did have a drinking problem.
L.Z. has been diagnosed with depression, bipolar disorder and personality disorder. She attended therapy and bi-monthly medication monitoring for Paxil, Klonopin and Bupropion. L.Z. was determined to need alcohol treatment while B.S. initially was not. L.Z. was only allowed to visit with Billy under B.S.' supervision.
On November 13, 2009, the Division received a second referral. The anonymous caller stated that there was an incident that night at the family's home where the police were called and B.S. was arrested.
A Division caseworker contacted the Garfield Police and was told about the domestic dispute and B.S.' arrest. The police report indicated that B.S. had been drinking and was ringing the downstairs bell after L.Z. kicked him out. In addition, the report stated that L.Z. showed visible signs of scratches, bruising, and redness around her neck. When the Division went to the house, caseworkers noted that L.Z. was watching Billy without supervision. L.Z. explained that her downstairs neighbor was supervising her, but L.Z. had to go upstairs to change Billy's diaper. L.Z. informed the caseworkers that B.S. was drunk the day before and tried to choke her. After a short struggle, he left the apartment and she refused to let him back in. Pursuant to a Dodd removal, Billy was placed in a Division approved foster home, as B.S. was in jail and no approved alternate supervisor could be found.
Almost a week after the incident, B.S. admitted to the Division that he choked L.Z. He acknowledged that they both "have a problem with alcohol, " and could "benefit from substance abuse counseling."
Several weeks later, Billy was placed with his maternal aunt and uncle, where he remains to date. Both parents were permitted to visit three days a week, supervised by the relatives, who reported that the visits went well.
On January 23, 2010, Dr. Edward Aronow performed a psychological evaluation of L.Z. Dr. Aronow concluded that while she loves her son, L.Z. is an alcoholic and in denial about her condition.
The following month, L.Z.'s therapist informed the caseworker that she believed that L.Z. continued to drink alcohol even though she had completed her substance abuse treatment.
One month later, Dr. Michael P. Gentile performed a psychiatric evaluation of L.Z. Dr. Gentile found that L.Z. "consumed substantial amounts of alcohol to self-medicate her depression[, ]" and that "[t]he large amounts of alcohol [she] consumed would qualify for binge/abuse . . . ." Dr. Gentile recommended that L.Z. submit to an assessment and treatment for her drug and alcohol abuse.
The Division referred L.Z. to Alternatives to Domestic Violence. She completed twenty-six of the twenty-nine domestic violence counseling sessions. L.Z. was also compliant with her program for medication monitoring and participated in individual therapy.
On September 16, 2010, the Division received a third referral, this time from B.S.' son-in-law, stating that L.Z. was calling his home and was heavily intoxicated, verbally abusive and threatening B.S. The caller stated that L.Z. drinks when she is not scheduled for urine screens. The caller stated that L.Z. was arrested a few days earlier because she showed up intoxicated and was screaming and banging at his door. The Division verified that L.Z. had been arrested and charged with a disorderly persons offense.
The following month, B.S. was arrested for domestic violence against L.Z. L.Z. indicated that B.S. had shown up intoxicated at her apartment and rang the doorbell, and banged on the door and window. L.Z. pressed charges for harassment and a domestic violence temporary restraining order was granted against B.S.
In November 2010, L.Z. was re-referred for substance abuse evaluations, treatment and counseling.
On December 20, 2010, the Division caseworker received a ten minute voicemail from L.Z. L.Z, could be heard saying "ok, [B.S.], you're drunk . . . I do not want to talk about this." A man's voice could be heard in the background. That same evening, L.Z. also called her sister. The sister reported that L.Z.'s speech was slurred and she sounded intoxicated. When confronted with this information by the caseworker, L.Z. stated that she did not remember calling her sister or the caseworker. B.S. refused to submit to a urine screen because of work and denied that his voice was on the voicemail. Two days later, B.S. again refused to submit to a urine screen. He indicated that he had attended ten AA meetings. The caseworker informed B.S. that the resource parents were no longer willing to supervise his contact with Billy.
On March 4, 2011, Dr. Alison Strasser Winston performed a psychological evaluation of L.Z. Dr. Winston testified that L.Z. demonstrated a significant tendency to minimize her alcohol use and history of domestic violence. For example, in discussing the November incident, L.Z. told Dr. Winston that B.S. did not try to choke her. She explained that he pushed her on the couch and she bruises very easily.
In addition, Dr. Winston was alarmed that L.Z. recently married B.S. after she obtained a restraining order against him and in light of their history of domestic violence. Dr. Winston concluded that L.Z. did not seem to have an understanding of how being in a relationship like this could negatively affect her son.
On April 26, 2011, Dr. Winston performed a parenting evaluation of B.S. Dr. Winston was concerned that B.S. "appears to minimize his alcohol use and demonstrates no insight into the reasons for his alcohol consumption or its impact on his behavior, particularly with regard to his relationships with his wife and son." B.S. denied ever consuming significant amounts of alcohol or having a drinking problem. Dr. Winston found that "[i]n light of [B.S.]'s ongoing failure to comply with recommended services, there is a poor prognosis for family reunification." Dr. Winston concluded that B.S. would be "unable to provide his son with a safe and stable environment within the foreseeable future."
Cristina Keresztes became the family's Division caseworker on April 11, 2011, and testified that she referred L.Z and B.S. to a Polish-speaking therapist for couples counseling. However, after only a month, Keresztes received a report from the therapist stating that the parties required a different type of counseling. The therapist believed that B.S. needed to attend a substance abuse psycho-education group.
On October 7, 2011, Dr. Winston conducted a bonding evaluation between Billy and his aunt and uncle. Dr. Winston found that Billy's interaction with his maternal aunt and uncle suggests that he has a strong, secure emotional attachment to them. She opined that "[Billy] clearly views his aunt and uncle as significant providers of his needs for guidance, support, affection, and protection."
Five days after this evaluation, police officers reported to L.Z.'s apartment in response to a reported dispute. L.Z. appeared to be intoxicated and stated that she and B.S. had an argument. The police officers observed kitchen knives on the coffee table, in the bedroom, and on the computer desk. Two months later, a Division caseworker spoke to L.Z. about the October 2011 incident. L.Z. stated that B.S. was drunk that night and had placed knives around the apartment and grabbed her arm. L.Z. agreed that placing a child in such a situation would be unsafe. The following day, B.S. said he had not taken a drink for two weeks. He acknowledged that the situation was unsafe for Billy. The next day, he tested positive for alcohol.
In December 2011, Dr. Winston conducted a bonding evaluation between L.Z. and B.S. with Billy. Dr. Winston found that Billy showed an "insecure attachment" to B.S. and a positive affectionate bond with L.Z., which was not a secure emotional attachment. Dr. Winston further opined that Billy likely views L.Z. and B.S. as adult playmates, not as caregivers. Dr. Winston concluded that L.Z. and B.S. were incapable of providing Billy with a safe and stable environment now or in the foreseeable future, and termination was in the child's best interests.
On appeal, L.Z. raises the following issues:
THE TRIAL COURT ERRED BY DETERMINING THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP L.Z. CORRECT THE CIRCUMSTANCES WHICH LED TO [BILLY]'S PLACEMENT OUTSIDE OF THE HOME AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATIION OF PARENTAL RIGHTS AS REQUIRED BY N.J.S.A. 30:4C-15.1(a)(3).
POINT I: THE DIVISION FAILED TO PROVIDE THE NECESSARY DOMESTIC VIOLENCE SERVICES WHICH WERE NECESSARY TO ASSIST L.Z. IN CORRECTING THE CIRCUMSTANCES WHICH LED TO [BILLY]'S OUT OF HOME PLACEMENT.
POINT II: THE TRIAL COURT FAILED TO PROPERLY CONSIDER KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE PERMANENT PLAN TO TERMINATION OF PARENTAL RIGHTS.
POINT III: THE PERMANENCY PLAN OF KINSHIP LEGAL GUARDIANSHIP IS IN [BILLY]'S BEST INTEREST.
B.S. raises the following issues on appeal:
POINT I: THERE IS A LACK OF SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS.
A. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE SAFETY, HEALTH, OR DEVELOPMENT OF THE CHILD HAD BEEN OR WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH THE FATHER.
B. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE FATHER IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS CHILD.
C. THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT REASONABLE EFFORTS TO PROVIDE SERVICES TO THE FATHER WERE MADE.
D. THE TRIAL COURT ERRED IN CONCLUDING THAT THE DIVISION HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
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." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). When seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a)(1-4), 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.
"Th[e]se 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)).
In his written decision terminating both parents' parental rights, Judge Conte noted that neither L.Z. nor B.S. offered any expert testimony to rebut Dr. Winston's conclusions. Under the first prong of N.J.S.A. 30:4C-15.1(a), the judge explained that neither L.Z. nor B.S. had successfully addressed their alcohol abuse and had remained together in spite of the continuing domestic violence between them.
With regard to prongs two and three, Judge Conte delineated the programs offered both parents by the Division. Although L.Z. cooperated to a large extent with all of the services, she was unable to remediate her problems. B.S. showed little cooperation and continued to drink to excess and engage in domestic violence.
Regarding prong four, Judge Conte noted that Billy was securely bonded to his aunt and uncle and not his parents. A court should only appoint a caregiver as a Kinship Legal Guardian if "adoption of the child is neither feasible nor likely; and . . . awarding kinship legal guardianship is in the child's best interests." N.J.S.A. 3B:12A-6(d)(3)-(4). See also N.J.S.A. 3B:12A-1 to -7; N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 86-88 (App. Div. 2003). Kinship Legal Guardianship was not an alternative to terminating parental rights because L.Z.'s relative resource parents were prepared to adopt Billy. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J.Super. 127, 137 (App. Div. 2011).
Judge Conte's findings are based on "adequate, substantial and credible evidence." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J.Super. 427, 433 (App. Div. 2002) (citation omitted).