July 17, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
E.D.H., Defendant-Appellant, and D.B., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF J.Z.H., Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-130-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Sigrid S. Franzblau, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth & Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa Rusciano, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.Z.H. (Hector Ruiz, Designated Counsel, on the brief).
Before Judges Alvarez and St. John. 
Defendant E.D.H., whom we will refer to as Elaine to preserve anonymity and for ease of reference, appeals the termination of her parental rights to her son, J.H., whom we will refer to as James. James was born December 12, 2009, when Elaine was seventeen years old and herself in the care and supervision of plaintiff the Division of Youth and Family Services (the Division). James's father, D.B., did not appear at trial and does not appeal entry of the judgment against him. We affirm.
The Division received custody, care and supervision of James six days after his birth, and placed him in a foster home. He has never lived with his mother. The Division eventually filed a complaint for guardianship, and the trial was conducted March 22 and March 23, 2012. Elaine appeared only on the morning of the first day of trial. She presented no witnesses.
After hearing summations on April 4, 2012, Judge Garry J. Furnari rendered a comprehensive and cogent decision from the bench. We affirm principally for the reasons stated by Judge Furnari, and briefly comment on only two points raised on appeal.
The record establishes that Elaine was placed in foster care on April 30, 2008, due to her mother's incarceration. She was still in foster care on the date of trial. She has lived in about five foster homes, three different group homes, and with various friends and relatives. She is a chronic runaway, having left foster as well as institutional placements. When evaluated, Elaine was found to be clinically depressed, to suffer from post-traumatic stress disorder and oppositional defiant disorder, to have been the victim of physical and sexual abuse, and to have only borderline intellectual functioning along with limited literacy skills. She lacks insight into her circumstances, and rejected all efforts at treatment.
Elaine, during the multiple evaluations conducted at the Division's request, although expressing the best intentions towards James, did not seem aware of her own challenges, or of the steps required to live independently with her child. In 2010, Elaine again became pregnant and left the program in which she was living even though she had been advised that running away would have a negative impact on any prospect of reunification with James.
By January 2011, Elaine refused to return to the last program in which she had been placed, although a bed was still available. She also told her caseworkers that she would not participate in any services besides visitation and parenting classes. Elaine had no plan for reunification, even though the Division informed her that James's case goal was being changed from reunification to adoption.
Elaine subsequently tested positive for cocaine, but did not attend scheduled substance abuse evaluations. She admitted to Alexander Iofin, M.D., who conducted a second psychiatric evaluation on September 28, 2011, that she had been smoking marijuana "because [she] had nothing to do, " but denied using other drugs. Elaine told Iofin she was receiving social security disability because she was not able to work, but was unable to provide any other details regarding the determination. Although Iofin noted her cognitive limitations, he did not believe these impaired her ability to understand the specifics of the psychiatric assessment he was conducting. Iofin, who in 2010 had found Elaine to be the victim of neglect, physical and sexual abuse, post-traumatic stress disorder, oppositional defiant disorder, impulse control disorder, intermittent explosive disorder, affective disorder, bipolar disorder, and relational problems related to mental health, added cannabis abuse to his earlier Axis I diagnosis. He recommended drug and alcohol assessments, as well as mental health treatment, but noted that "[t]he possibility of [Elaine] voluntarily agreeing to go and be treated with mental health providers will be quite slim, secondary to her active denial that she does not have any psychiatric pathology." Iofin "maintain[ed] [a] strong clinical suspicion that [Elaine was] suffering from a significant amount of psychiatric pathology [about which] she [was] in denial . . . and consequently express[ed] serious concerns about the abilities of [Elaine] to provide adequate care for herself, [much less to provide] minimally adequate [care] for the child in question."
Elaine was uncooperative with the Division's efforts at completing bonding evaluations. When a caseworker appeared at her home to transport her to the first appointment, she claimed she overslept and said she did not recall the evaluation being scheduled on that day. Because they were more than an hour late, the evaluation could not be conducted on the initial date. When rescheduled, the caseworker notified Elaine of the date and time by phone. Sometime thereafter, her phone stopped functioning and she moved out of her apartment, leaving no forwarding address. The caseworker was not able to provide additional notice. The worker made multiple attempts to contact Elaine at her biological mother's address, but no one would come to the door. Therefore, Elaine missed two rescheduled bonding evaluations.
Elaine faithfully attended her supervised visits with James. James's current foster mother, with whom he has resided since November 14, 2011, wishes to adopt and has said that she is "head over heels" for the child.
Judge Furnari began his decision by noting that despite Elaine's love for James, it was apparent that at this point in her life, whether due to her young age or for some other reason, she was simply unwilling or unable to take the necessary steps to provide for James. He noted that Elaine did not even cooperate with the completion of the bonding evaluations. As the judge said, it was "time for permanency." He cogently summarized the evidence and reached the conclusion that pursuant to N.J.S.A. 30:4C-15.1(a) the Division had proven by clear and convincing evidence that Elaine's parental rights should be terminated and granted guardianship of James to the Division.
On appeal, Elaine raises the following points for our consideration:
THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION CARRIED ITS BURDEN OF PROOF AS TO ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).
A. The Division Did Not Adduce Clear And Convincing Evidence That [Elaine] Had Endangered [James's] Health and Development or Would Do So In The Future.
B. The Division Did Not Adduce Clear And Convincing Evidence That [Elaine] Was Unwilling Or Unable To Eliminate The Alleged Harm Facing [James].
C. The Division Did Not Make Reasonable Efforts To Provide [Elaine] With Services To Meet Her Needs.
D. The Trial Court's Conclusion That Termination Would Not Do More Harm Than Good To [James] Was Not Supported By Substantial, Credible Evidence.
Relying on the trial judge's analysis, we add only the following brief comments. Clearly, "[r]eview of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). The trial court's factual findings "should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
This deference should be accorded "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J.Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). On the other hand, "'where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, ' the traditional scope of review is expanded." J.T., supra, 269 N.J.Super. at 188-89 (quoting Snyder, supra, 233 N.J.Super. at 69).
We address only Elaine's first and last points on appeal, although clearly the four statutory criteria "are not discrete and separate; they relate to and 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 "determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
Under N.J.S.A. 30:4C-15.1(a)(1), "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. "'The mental health of the child and its best interest psychologically must always be considered. . . . [and] [t]he absence of physical abuse or neglect is not conclusive.'" N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) (quoting In re Guardianship of R., 155 N.J.Super. 186, 194 (App. Div. 1977))(internal quotation marks omitted). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Rather, the statute speaks to "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." 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 risk of harm includes the potential for serious emotional injury. See K.H.O., supra, 161 N.J. at 349.
Elaine contends that the Division has not proven she has or will endanger James's health and development. We disagree, concurring with the trial judge's view this prong of the statutory test was supported by adequate, substantial, and credible evidence in the record. See J.T., supra, 269 N.J.Super. at 188.
The trial judge determined that Elaine's chronic runaway behavior, both before and after James's birth, made it impossible for her to provide for her child. This behavior continued despite the Division securing numerous programs and placements in which Elaine could have been reunited with James. The judge also noted that Elaine's chronic runaway behavior continued throughout the litigation and that she participated in none of the services offered to her, even though she knew reunification required her to accept services. As the court said, Elaine "was [herself] a child who needed services and the Division tried numerous times over the course of several years to provide her with those services . . . . she was never around long enough to participate in any services and therefore has allowed [James] to remain in foster care since the time of his birth." Moreover, Elaine's refusal to cooperate with services, despite serious Axis I diagnoses and use of drugs, place the child at risk. It is not necessary for James to actually be harmed, emotionally or physically, before concluding that this prong of the test has been met. Elaine's behavior established she could not act as a parent to James. She could not obtain stability for herself, nor did she attempt to address her mental health needs. See A.G., supra, 344 N.J.Super. at 440.
"The fourth prong of the best interests of the child standard requires a determination that termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. "The question to be addressed . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." Id. at 355. "[T]o satisfy the fourth prong, the State should offer testimony of a 'well qualified expert who has had the full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19)). We have noted that we "can envision very few scenarios in which comparative evaluations would not be required." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 440 (App. Div. 2009).
Nevertheless, the Supreme Court has also cautioned "that placement plans must not lose sight of time from the perspective of the child's needs." K.H.O., supra, 161 N.J. at 357. There is a "paramount need . . . for permanent and defined parent-child relationships." J.C., supra, 129 N.J. at 26. "There are 'limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification.'" A.R., supra, 405 N.J.Super. at 442 (quoting K.H.O., supra, 161 N.J. at 358)).
Elaine's final contention is that the Division failed to prove the fourth prong of the best interests test, that termination of parental rights would not do more harm than good, because no bonding evaluation was completed. She argues that the trial judge erred in concluding that she refused to attend, attributing her tardiness at the initial appointment to an innocent mix-up regarding scheduling, and asserting she never received notice of the rescheduled appointments.
The trial judge acknowledged that the fourth prong was the "toughest" in this case, because of the positive visitation reports between mother and child, and because no bonding evaluation was completed. Nonetheless, attributing the lack of a bonding evaluation to Elaine's "utter refusal" to submit to one, and finding that after over two years of rejecting services she remained unable to offer James anything more than she did at the start of the litigation, the judge determined that termination of her parental rights would do no more harm than good.
Elaine's primary argument seems to be that she did not receive adequate notice of the bonding evaluations. Yet she received notice of the first evaluation during a September 12, 2011 hearing, and the Division worker testified that she sent written notifications to Elaine's apartment. The worker also testified that she spoke with Elaine on the phone regarding the date and time of the first rescheduled appointment.
Elaine is correct that the record is devoid of any proof that she received additional notice of rescheduled appointments after she moved and her cell phone ceased to function. The caseworker testified that she was unable to contact Elaine via phone or speak with her at her biological mother's home. Indeed, the caseworker acknowledged that she had no contact with Elaine between October 2011 and March 22, 2012, the first date of trial, despite notes in the Division reports that she would attempt to contact Elaine during visitation.
Yet while the Division may not have gone above and beyond to contact Elaine and remind her of her appointments, neither did Elaine reach out to the Division to confirm them or initiate the services that would lead to reunification. She did receive notice of at least the first two appointments and attended neither. Ultimately, no parent can delay a guardianship trial by avoiding the final step in the pretrial process which enables the matter to be concluded. To allow such control over the litigation by parents who have reason to fear the outcome would jeopardize the well-being and health of the children involved.
Bonding evaluations are the general rule. But James has never lived with his mother, who is a young woman with a significant history of being a chronic runaway, who has mental health issues, cognitive impairments, and possible substance abuse issues. The need for a bonding evaluation is not as essential in this case. See A.R., supra, 405 N.J.Super. at 442. Therefore, we find the Division met the standard of proof as to this prong as well, despite the absence of bonding evaluations.