June 28, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
C.T. and D.C., SR., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF D.C.C. and D.C., JR., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-119-12.
Joseph E. Krakora, Public Defender, attorney for appellant C.T. (Emily J. Daher, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant D.C., Sr. (Kevin G. Byrnes Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.C.C. and D.C., Jr. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
Before Judges Graves, Espinosa, and Guadagno.
In these consolidated appeals, defendant C.T. is the biological mother and defendant D.C., Sr. (D.C.) is the biological father of two children: D.C.C. (fictitiously Donna), born August 18, 2010; and D.C., Jr. (fictitiously Junior), born September 1, 2011. Defendants appeal from an April 26, 2012 judgment terminating their parental rights and granting guardianship of the children to the Division of Youth and Family Services (DYFS or the Division). The Law Guardian for the children supports the trial court's decision. For the reasons that follow, we affirm.
On August 23, 2010, the Division received a referral from a social worker at Cooper Hospital in Camden concerning Donna, who was five days old. The social worker reported that C.T. said she did not know she was pregnant and had no prenatal care. It was reported that the child weighed two pounds 5.9 ounces at birth, and would require extensive hospitalization because she was a pre-term infant diagnosed with sepsis, respiratory distress, and asphyxia. The caller also stated "the mother has cognitive delays" and "the child's father seems to have some mental impairment as well."
The Division investigated the referral and found that Donna was in the neonatal intensive care unit at Cooper Hospital. During a meeting on August 25, 2010, a hospital social worker informed the Division caseworker that defendants' home had no electricity and no furniture. The caseworker also met with C.T., who confirmed there was no electricity because an electric bill had not been paid. C.T. also said she did not have any family or friends other than her grandparents, but she did not speak with them because "they are mean." When the caseworker asked C.T. why her grandparents were mean, C.T. said they told her she could "not raise a baby." C.T. also said she was receiving Social Security Disability Insurance but did not know why she received it.
On September 20, 2010, a hospital social worker advised the Division she was concerned "about the parents' ability to care for the child, " because they had not applied for Medicaid and had not been to the hospital to visit the child in five days. The social worker said that Donna would be discharged in approximately two weeks, and the parents still had no electricity, no clothes for the child, and no place for the child to sleep at their home. In addition, the social worker indicated that the hospital was attempting to obtain services for the mother through the Division of Developmental Disabilities.
A Division caseworker went to the Cooper Hospital on September 22, 2010, to meet with the parents and hospital staff. The caseworker noted that D.T. "appeared unkempt, his clothing was filthy, and he emitted a strong dirty body odor." In addition, it was reported that C.T. was unable to properly diaper the baby "after multiple instructions, " and the hospital staff was "very concerned about the parents' ability to care for the child."
The next day, the caseworker went to defendants' home and observed the living room floor was "covered with piles of clothing" that were "bagged and strewn about." The caseworker also observed that the house had exposed electrical wiring and no heat. The only furniture was a single inflatable mattress with a pillow and blanket on the dining room floor and a full-sized inflatable mattress with a pillow and a blanket in one of the bedrooms. When the caseworker asked D.C. if he was going to help feed the baby and change the baby's diaper, he stated he did not "change or feed babies." He also told the caseworker that "he did not have any family that he was close to."
Based on its investigation, the Division concluded that its initial plan to provide in-home services to defendants was inadequate because it would place Donna at risk. Therefore, on October 1, 2010, the Division filed a verified complaint with an order to show cause, and was granted physical and legal custody of Donna. The court noted in the order that defendants "seem to have mental impairments and cognitive difficulties" and their home was "unsanitary and unsafe." In addition, the court determined that Donna would have "special needs" when she was discharged from the hospital, and the order was necessary to protect her from "both emotional and physical harm."
On October 22, 2010, the return date of the order to show cause, the court continued the custody of the child with the Division. C.T. and D.C. were permitted weekly supervised visits with Donna and were ordered to attend psychological evaluations. The Division was ordered to provide defendants "with bus passes for visits" and "transportation to and from all evaluations."
Following a case management review on November 30, 2010, the court ordered the Division to obtain "a parenting capacity evaluation for both parents." In addition, the court ordered defendants to undergo psychological evaluations and to attend parenting skills training. The court also ordered defendants to "immediately disclose to the Division the names and addresses of relatives who may be assessed for placement of the child."
C.T. was referred to JoAnn Gonzalez, Ph.D., for a psychological evaluation and a parenting assessment. Dr. Gonzalez found that C.T. was functioning "within the mild mental retardation range, " which affected her ability to benefit from services the Division offered:
There is concern with [C.T.'s] ability to benefit from any services needed as she has serious cognitive [limitations] as well as . . . difficulty accepting that she does have some problems that require her attention. There is also concern with her inability to recognize the problems in the relationship with [D.C.]. He has belittled her in front of others, he is demanding, very controlling and extremely jealous. She does not see anything wrong in their relationship and is unable to see his behavior towards her as emotionally abusive. There is a strong likelihood that [D.C.] will react explosively regardless of where he is or who is present. There is concern that he may expose their daughter to this kind of interaction, which will certainly have an effect in the emotional life of their daughter. It is not likely that [C.T.] will be able to protect her daughter from these confrontations.
In her parenting assessment report dated February 10, 2011, Dr. Gonzalez made the following recommendation:
[Donna] should remain in foster care. Her parents are not ready to assume the responsibility for her care. They are presenting difficulties in [their] parenting abilities that will be very difficult to overcome, especially as neither parent seems willing to accept the help of family, friends or service providers. At present the relationship with their daughter is that of casual caretakers that [Donna] sees once a week under supervised conditions. There has not been any significant progress in [C.T.'s] or [D.C.'s] life since [Donna] was placed in a resource home that would indicate that they are improving in their ability to provide a safe environment for their daughter.
Additionally, Dr. Gonzalez recommended C.T. complete a parenting skills program and attend domestic violence services.
On February 25, 2011, the court ordered both defendants to attend parenting skills training and domestic violence counseling. Thereafter, defendants were enrolled in a parenting skills program. However, on April 25, 2011, the service provider reported that C.T. attended two sessions, but failed to attend nine sessions; and D.C. attended three sessions, but failed to attend fifteen sessions. The service provider subsequently reported that defendants' participation in the program was discontinued due to noncompliance. Similarly, defendants failed to attend domestic violence counseling.
In June and July 2011, defendants missed numerous scheduled visits with Donna, and D.C. refused to allow a Division worker to see their home. On August 18, 2011, the couple scheduled a last minute visit, and D.C. explained he had not seen Donna for the past six weeks because he was working twelve to fourteen hours a day. When the caseworker asked D.C. why C.T. did not attend the visits, he said she was not allowed to go to the bus stop alone.
On August 22, 2011, 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 Donna to defendants' custody in the foreseeable future because defendants had "extreme limitations" and were "not compliant with services."
On September 1, 2011, C.T. gave birth to Junior at Our Lady of Lourdes Hospital in Camden. The Division was not aware of the birth, however, because C.T. continuously denied being pregnant. On October 4, 2011, hospital personnel informed the Division of the birth and that C.T. said she did not have health insurance. The hospital also reported "the baby had feeding issues" and was placed in intensive care prior to his release from the hospital on September 16, 2011.
Upon receipt of this information, a Division worker went to defendants' residence, but no one was home. The worker proceeded to another address and located Junior at the home of a family friend. That same day, an emergent removal was conducted, and the Division was awarded custody, care, and supervision of Junior on October 6, 2011.
Prior to trial, Frank J. Schwoeri, Ph.D., performed psychological evaluations of C.T. and D.C. and bonding evaluations to assess the children's attachment to their natural parents and their foster parents. In a report dated February 2, 2012, Dr. Schwoeri summarized his findings and recommendations as follows:
[C.T.] has very significant cognitive limitations, functioning in the mentally deficient range of intellectual functioning. Such persons have difficulty living independently and may be able to parent adequately but, in most cases, require considerable guidance, support, and relatively optimal circumstances. [C.T.] is reluctant to accept help from family members or outsiders and it totally dependent on a partner who has his own significant limitations and is unable to compensate for [C.T.'s] deficits and difficulties. Her passivity, social isolation, dependency, and cognitive limitations significantly impair her parenting capacity. She is unable to parent her children.
[D.C.], while not quite as limited as his partner, also has significant limitations himself and is unable to compensate for those of his partner, [C.T.]. He has a significant criminal history and has personality characteristics consistent with anti-social personality disorder, including significant egocentricity, a marked tendency toward blame externalization and a relative inability to take the perspective of others in considering interpersonal issues. Reports of supervised visitation have indicated that he has been passive, disengaged and disinterested in his daughter, [Donna], and on the current Bonding Evaluation seemed to lack confidence in his parenting abilities and interacted with his daughter in a confused and perfunctory manner. He is unable to parent his children.
[Junior], age 4 months at the time he was seen with his foster mother on 1/10/2012, has been placed with this same foster parent since he was one month old. This foster parent and her 19-year-old daughter . . . who is also an approved caregiver, clearly have the ability to provide the nurturance, protection, guidance, and stability which [Junior] requires for his development. They are providing optimal conditions for the development of a secure attachment which will begin as he reaches around six months of age and will be fully consolidated before he reaches one year. By March of this year when [Junior] is six months old, he will be developing a specific attachment to these caregivers, and removing him after that time would cause him significant and enduring harm. It is in his best interest to remain in the care of this foster family.
[Donna], now a year and a half old, has been continuously in the care of her foster parents since being placed from the hospital at about a month and a half of age. Having been a preemie with significant developmental problems, she has been thriving in their care and these foster parents clearly have the ability to provide the stability, guidance, nurturance, and protection which she needs. At 11/2 years of age she has developed a secure attachment bond to these parents, virtually as if they were her biological parents with whom she had lived all of her life. Moving her from their care would cause significant and enduring harm and it is clearly in her best interest to remain in their care.
During the guardianship trial, which took place on April 25 and 26, 2012, the Division presented testimony from two caseworkers, Deborah Munoz and Nikiya Beatty, as well as the expert testimony of Dr. Schwoeri. C.T. and D.C. did not testify and neither defendant presented any witnesses.
In an oral decision on April 26, 2012, the court stated that Dr. Schwoeri is "well-known and well-qualified" and "extremely credible." In addition, after carefully considering all of the evidence adduced at trial, the court concluded the Division had proven each of the four statutory requirements of N.J.S.A. 30:4C-15.1(a) for the termination of parental rights by clear and convincing evidence. The court's findings and conclusions included the following:
[M]aking a determination in this type of case where there was not, as we usually see, substance abuse, physical abuse of children, is a difficult one. But, the Court must look to the best interest . . . of the child. Sympathy for the parents who, through no fault of their own, have these types of cognitive deficits, cannot blind us to the parens patriae responsibility to consider the needs and interest of the children.
In this case, from the testimony, which I find to be credible, of the doctor, I find by clear and convincing evidence . . . there is no reasonable probability that these parents will be able to care for these children in the foreseeable future. Indeed, they seem to be incapable of caring for themselves.
The children's safety, health, and development will be endangered by the parental relationship. They . . . are unwilling, or perhaps unable; more accurately, to eliminate the harm facing the children, those children. And harm will include and does include evidence [that] separating these children from their resource family parents would cause serious and enduring emotional or psychological harm to them.
Despite protest to the contrary, I find that the Division has made reasonable efforts to provide services to help [C.T.] and [D.C.] correct the circumstances which led to the children's placement outside the home.
And I have considered alternatives to termination of the parental rights, no family members or friends being available to help these people, and finally, that termination of parental rights for the reasons expressed in large part by Dr. Schwoeri, will not do more harm than good.
On appeal, both defendants argue that the court erred by terminating their parental rights because there was insufficient evidence to satisfy the statutory requirements of N.J.S.A. 30:4C-15.1. We conclude from our examination of the record and the applicable law that defendants' arguments are without merit, Rule 2:11-3(e)(1)(E), and only require the following discussion.
The State bears the burden "to satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The Division must establish:
(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.
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 Ins. 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." F.M., supra, 211 N.J. at 448.
Guided by these principles, we are satisfied that the trial court's decision is supported by clear and convincing evidence, and that the trial court correctly applied the applicable legal standards. Accordingly, the judgment terminating C.T.'s and D.C.'s parental rights to Donna and Junior is affirmed substantially for the reasons stated by Judge John A. Fratto on April 26, 2012.