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New Jersey Division of Youth & Family Services v. T.H.

Superior Court of New Jersey, Appellate Division

June 26, 2013

T.H., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.H., Minor.


Submitted May 22, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-106-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Anna F. Patras, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kelly Levy, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin A. McLaughlin, Designated Counsel, on the brief).

Before Judges Grall and Simonelli.


Defendant T.H., the biological mother of J.H. (Jay), [2] born in February 2010, appeals from the June 26, 2012 Family Part judgment of guardianship, which terminated her parental rights to the child. The judgment also terminated the parental rights of Jay's biological father, K.J., who has not appealed. On appeal, defendant contends that plaintiff New Jersey Division of Youth and Family Services (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1a by clear and convincing evidence, and the trial judge incorrectly relied on certain evidence. We affirm.

Defendant is a paranoid schizophrenic who was also diagnosed with psychotic and affective disorders, depression and substance abuse. She became involved with the Division in December 2007, shortly before the birth of her first child, Nancy, [3] after the Division received a referral that she was pregnant, had no pre-natal care, and was very violent and exhibiting bizarre behavior. After Nancy's birth in January 2008, a hospital social worker advised the Division about defendant's psychiatric condition and that defendant would not disclose if she was receiving psychiatric treatment. The Division also discovered that defendant had tested positive for marijuana and opiates when Nancy was born. The hospital discharged defendant with instructions to obtain mental health treatment, and defendant's treating physician recommended that she receive psychiatric treatment and management of her prescribed psychotropic medications. Defendant did not comply.

The Division removed Nancy from defendant's care and placed her in foster care. Thereafter, the Division referred defendant several times for a substance abuse evaluation, but she failed to attend.

Defendant suffered a psychotic episode in May 2008, and was hospitalized for eight days. The hospital discharged defendant with instructions to obtain mental health treatment and medication, and her treating psychiatrist recommended psychotherapy, group therapy, and psychotropic medication. Defendant did not comply. In addition, although defendant was offered art therapy, stress management, life and coping skills, psychotherapy, anger management and relapse prevention, she did not participate in any of these services.

On April 17, 2009, Alexander Iofin, M.D., a psychiatrist, evaluated defendant and found she had paranoid ideation and significant psychotic features with thought blocking and thought derailment. The doctor noted that defendant had no insight into the severity of her psychiatric condition and her non-compliance with treatment and medication made it "difficult if not impossible to properly assess her." Dr. Iofin opined that defendant required lifelong mental health treatment and injectable psychotropic medications. He recommended that the Division suspend supervised visits with Nancy until defendant became fully compliant with treatment and medications. Visitation was never reinstated because defendant remained non-compliant.

In June 2009, the Division referred defendant for psychiatric treatment at Irvington Counseling Center. Defendant failed to comply with the Center's recommendations.

In December 2009, the Division received a referral that defendant, then six months pregnant with Jay, was brought to a hospital crisis unit by emergency medical services. The hospital admitted defendant because she believed the baby was causing a fire in her stomach and she wanted medication to stop the baby from moving. An assessment revealed that defendant was non-compliant with mental health treatment and medication. She was discharged with instructions to obtain treatment, which she failed to do.

Jay was born on February 1, 2010. Due to defendant's untreated mental health issues, the Division removed him from defendant's care and placed him in foster care. Defendant was barred from visiting Jay until she complied with treatment and medication. Because she remained non-compliant, defendant never visited with Jay.

On February 22, 2010, Mark Singer, Ed.D., a psychologist, evaluated defendant and determined that she had a significant, untreated mental disorder involving a thought disorder and her prognosis was poor. The doctor opined that defendant lacked the resources needed to parent any child, was not likely to become a viable parenting option in the foreseeable future, and could not attend to her own needs, let alone a child's needs.

Dr. Iofin re-evaluated defendant on May 16, 2010, and determined that nothing had changed and defendant's psychotic symptoms would not improve even if she received all treatment modalities or medications. Dr. Iofin concluded that defendant could not be considered as a minimally adequate parent then or in the foreseeable future.

On June 10, 2010, the trial court terminated defendant's parental rights to Nancy following a trial. Defendant appealed, we affirmed, and our Supreme Court denied certification. New Jersey Div. of Youth & Family Servs. v. T.H., A-5641-09 (App. Div. June 21, 2011), certif. denied, 209 N.J. 595 (2012).

In December 2010, the Division placed Jay with his paternal great-aunt, who wants to adopt him. In February 2011, the Division filed a guardianship complaint, seeking to terminate defendant's parental rights to Jay. Defendant failed to appear for psychiatric and psychological re-evaluations and a bonding evaluation. She also failed to keep in contact with the Division or attend any of the mental health treatment programs to which the Division and other medical professionals had referred her.

Dr. Singer conducted a bonding evaluation between Jay and his paternal great-aunt. Dr. Singer noted that Jay has never been in defendant's care and she never visited him. He concluded that the child is bonded to his paternal great-aunt, would likely experience a significant negative reaction and enduring harm should their relationship be severed, and there was no one who could mitigate that harm.

In a June 26, 2012 oral decision, the trial judge found that the Division satisfied all four prongs of the best interests of the child test under N.J.S.A. 30:4C-15.1a, and entered judgment terminating defendant's parental rights to Jay. As to prongs one and two, the judge found that despite the numerous services offered to defendant, she failed to address her mental health issues, which caused Jay's removal at birth and placement in foster care. Defendant also had not visited Jay since his birth and never cared for or supported him. Defendant also never provided Jay a safe, stable and permanent home, and was incapable of doing so due to her untreated mental health issues.

As to prong three, the judge found that defendant had been provided numerous services, including psychiatric and psychological evaluations and re-evaluations, referrals for mental health treatment, stress and anger management, psychotherapy, art therapy, and substance abuse referrals. Defendant had also been offered non-Division mental health treatment, which she did not attend. The judge determined that the Division had assessed other relatives, including the maternal grandparents, but ruled them out for appropriate reasons, and there were no alternatives to termination of parental rights.

As to prong four, the judge found, based on undisputed expert evidence, that Jay is bonded to his paternal great-aunt, would suffer enduring harm if removed from her, and had no parental figures in his life to mitigate that harm. The judge concluded that since there was no relationship or bond between defendant and Jay, the termination of her parental rights would not do the child more harm than good. This appeal followed.

On appeal, defendant raises the following arguments:

POINT ONE: The Decision to Terminate [T.H.'s] Parental Rights was Against the Weight of Submitted Evidence and Testimony.
Prongs [One and Two]: The Division Has Not Shown By Clear And Convincing Evidence That T.H.'s Relationship With Her Son has Caused or Will Cause Enduring Harm.
Prong [Three]: The Trial Court Erred in Finding That The Division Had Demonstrated, By Clear and Convincing Evidene That Reasonable Efforts Were Made to Provide the Mother with Appropriate Services.
Prong [Four]: It Will Do Jay More Harm than Good To Have T.H.'s Parental Rights Severed.
POINT TWO: The Trial Judge Incorrectly Relied On Hearsay Within Evidence Admitted Under the Business Records Exception As Well As Evidence From A Different Litigation.

Our Supreme Court has established the standard of review in parental termination cases:

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) (internal quotation marks and citations omitted).]

A court should terminate parental rights when the Division shows 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 [D]ivision 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-15.1a.]

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 (internal quotation marks and citations omitted).

The Division need not demonstrate actual harm in order to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The test is whether the child's safety, health or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. A.G., supra, 344 N.J.Super. at 440. Prong one can be satisfied where a parent refuses to treat his or her mental illness and the mental illness poses a real threat to a child. F.M., supra, 211 N.J. at 450-51; see also In re Guardianship of R.G. and F., 155 N.J.Super. 186, 194 (App. Div. 1977) (holding that the parents' mental illnesses created an environment in which they were unable to adequately care for and raise their children, thus causing them harm, despite the absence of physical abuse or neglect); A.G., supra, 344 N.J.Super. at 438-39 (holding that the fact that parents may be morally blameless is not sufficient when psychological incapacity makes it impossible for them to adequately care for a child).

In addition, a parent's failure to provide a "permanent, safe and stable home" engenders significant harm to the child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Likewise, a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379. Compounding the harm is the parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child]." Id. at 380. Such inaction "constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.

"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999); D.M.H., supra, 161 N.J. at 378-79. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The second prong may be satisfied

by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.
[K.H.O., supra, 161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, 211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).

"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." Id. at 452 (quoting N.J.S.A. 30:4C-15.1a(3)). The emphasis on the third prong

is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.
[Ibid. (internal citation and quotations marks omitted).]

As part of the inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J.Super. at 434-35. "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435.

The fourth prong seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). The fourth prong serves as a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must determine "whether . . . the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.

Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Thus, "'[t]o satisfy the fourth prong, the [Division] should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is [a] child's need for permanency. Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid.

We have considered defendant's arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that the Division clearly and convincingly established all four prongs of N.J.S.A. 30:4C-15.1a and affirm substantially for the reasons expressed in the trial judge's comprehensive well-reasoned June 26 2012 oral decision Affirmed.

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