August 13, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
G.M., Defendant-Appellant, and P.M., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF P.G.M., JR., A Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0028-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, 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 and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor P.G.M., Jr. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
Before Judges Fisher, Alvarez and Waugh. 
Defendant G.M. appeals the termination of her parental rights to her son P.G.M., Jr. (P.G.), born May 26, 1995. We affirm.
We summarize the record developed by plaintiff New Jersey Division of Youth and Family Services (the Division) over the course of a two-day trial. G.M. neither appeared nor presented a defense.
Over the years, the Division received numerous complaints involving P.G. and an older sister who is not the subject of this appeal. The referrals included allegations of physical abuse, criminal behavior, and risks posed by G.M.'s mental health problems. All were investigated and found to be unfounded.
On March 11, 2010, a referral was received from a psychologist employed at P.G.'s high school. The psychologist claimed that G.M., although diagnosed as suffering from clinical depression, had stopped taking medication, was prone to unpredictable outbursts, and pulled P.G. out of school approximately three weeks earlier. When G.M. was subsequently questioned about P.G.'s whereabouts, she was unsure whether he was in Florida or upstate New York. P.G. had criminal charges pending at the time. This was the first of multiple contacts between the Division and G.M. during which she was evasive about P.G.'s whereabouts and living conditions. A few days later, on March 17, 2010, G.M. was transported to Saint Clare's Hospital for a psychiatric screening. P.G. was found at the home he shared with his mother.
Shortly after that contact, on March 29, 2010, G.M. called police because she felt threatened by P.G., who was fifteen at the time. She had made numerous such calls in the past, complaining that her children did "not listen." In fact, Saint Clare's Hospital notified the Division later that day that G.M. brought both of her children to their facility demanding that they be psychiatrically evaluated as a result of their "acting out" behavior. G.M.'s sister, C.R., agreed to care for the children as a temporary placement. A few days later, however, P.G. went to stay with his father in upstate New York. When G.M. was eventually released from Saint Clare's Hospital on April 11, 2011, she refused to comply with the discharge recommendations, including participation in an intensive outpatient program.
When P.G. was interviewed on April 29, 2010, he admitted to experimentation with alcohol and marijuana. He also reported that his mother drank beer daily. Thereafter, the Division met with G.M. on more than one occasion, during which time her home was observed to be cluttered and dirty. She expressed concerns regarding her safety with P.G., disclosed an extensive domestic violence history involving her ex-husband, and explained that she would not take prescribed medication because it made her feel uncomfortable. She also refused to submit to a substance abuse evaluation or participate in any mental health services offered by any organization, including the Division.
Meanwhile, P.G. had returned to live with G.M. and the relationship continued to generate conflict, resulting in G.M. repeatedly contacting the police. Eventually, P.G. was placed with C.R. During the hearings that occurred in the following months, G.M.'s participation and appearances were sporadic. She continued to be noncompliant with mental health recommendations as well as Division services. In fact, G.M. did not appear at the fact-finding hearing regarding the allegations of abuse and neglect against her.
The Division worker learned from G.M.'s psychiatrist at Greystone Hospital that she had been diagnosed with schizoaffective disorder and been prescribed various medications during her stay at that facility. Her discharge plan required her to attend weekly Alcoholics Anonymous meetings and Saint Clare's enhanced outpatient program, and to contact the mental health association. Although G.M. stated that she was attending some group therapy sessions, she refused to sign releases so that Division staff could verify her statements.
By the end of 2010, G.M. told the Division worker that she was not participating in any programs at Saint Clare's because the other patients were "crazy, alcoholics, and on drugs." She missed scheduled visits with P.G., although she also claimed that at times P.G. would visit her at her home, and that when he did so, his conduct towards her was threatening.
A permanency hearing was held on May 20, 2011. G.M. did not appear. The court approved the Division's plan for termination of parental rights followed by adoption by C.R., and entered the appropriate order.
On May 23, 2011, C.R. contacted the Division to report that G.M. had told their mother that she felt "like going down there and putting a bullet in [C.R.]." As a result of the screening that followed, G.M. was hospitalized at Morristown Memorial Hospital, but was discharged the following day. C.R. obtained a restraining order against G.M.
By this juncture, on unannounced home visits, G.M.'s home was cluttered and dirty, with empty containers of alcohol observed throughout the home. In the termination trial, the Division introduced reports from the Parsippany Hills Police Department to the effect that numerous reports of noise disturbances and domestic violence had been received regarding G.M. and her boyfriend.
At the trial, Mark Singer, Ed.D., testified that during the bonding evaluation between P.G. and his foster parents, C.R. and her husband, P.G. said he did not wish to return to live with his mother, and wanted to be adopted by his aunt and uncle. P.G. had no other significant, consistent figures in his life other than his resource parents. Singer supported the termination of parental rights, as he believed that P.G.'s emotional well-being and behavioral functioning would only be strengthened by adoption. When interviewed in-camera, P.G. told the judge that he was doing better in school, participating in school sports, had recently made the honor roll, felt safe in his aunt and uncle's home, and wanted to be adopted by them.
At the conclusion of the trial, Judge Mary Gibbons Whipple found that the Division had proved its case by clear and convincing evidence and terminated G.M.'s parental rights. G.M. appealed. We affirm essentially for the reasons stated by Judge Whipple in her thorough and cogent thirty-page opinion.
On appeal, G.M. alleges the following errors:
THE DECISION TO TERMINATE [G.M.'S] PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF SUBMITTED EVIDENCE AND TESTIMONY
A. THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT [G.M.'S] MENTAL ILLNESS PREVENTED HER FROM MEETING [P.G.'S] NEEDS.
B. THE TRIAL COURT ERRED IN FINDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT [G.M.'S] MENTAL HEALTH HAD NOT IMPROVED DURING THE LITIGATION AND THAT LED TO HER INABILITY TO ELIMINATE THE PERCEIVED HARM TO [P.G.].
C. THE TRIAL COURT ERRED IN FALING TO ADEQUATELY CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
D. THE TRIAL COURT ERRED IN CONCLUDING THAT [THE DIVISION] HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF [G.M.'S] PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
The purpose of a termination proceeding is to determine the best interests of a child. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). The continued enjoyment of the parent- child relationship is the constitutional right of the parent, and stringent standards must be met to terminate parental rights. Ibid. Such decisions must be based on clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986).
Because the State has a parens patriae responsibility to protect children, New Jersey courts apply a four-part test to balance that responsibility and the rights of parents in determining whether termination of parental rights is appropriate. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
(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 four factors "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." K.H.O., supra, 161 N.J. at 348. "The considerations involved in determining parental unfitness are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (quoting In re Adoption by L.A.S., 134 N.J. 127, 139 (1993)), certif. denied, 190 N.J. 257 (2007).
Generally, an appellate court owes no deference to a trial court's interpretation of the law "and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A trial court's fact-findings, however, are binding on the appellate court when supported by substantial, credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A "cold record . . . can never adequately convey the actual happenings in a courtroom." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). A reviewing court "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." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
We concur with Judge Whipple's conclusions regarding all four statutory factors. The record readily established the clear and convincing evidence necessary for the Division to meet the statutory test.
As to the first prong, the trial judge noted that the record was "replete with evidence" of G.M.'s untreated mental illness and substance abuse issues. She drew a parallel between this case and the facts in New Jersey Division of Youth & Family Services v. A.G., 344 N.J.Super. 418 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002), in which parents who suffered from mental illness were unable to care for a child despite their best intentions. Judge Whipple concluded that G.M.'s mental illness and substance abuse problems, which she is either unable or unwilling to address, similarly prevent her from adequately caring for her adolescent child, thereby posing a significant risk of harm to him.
The fact that no expert was presented by the Division to more formally establish the reasons her mental health issues keep her from meeting P.G.'s needs is inconsequential. No such testimony was necessary in light of G.M.'s mental health commitments and mental health history, and the documented effects these issues had on her ability to provide a safe and sanitary home, and to provide appropriate supervision for P.G., who while residing with his mother may have been developing substance abuse issues of his own. G.M. refused to adhere to any mental health treatment regimen, including medication. Thus the first prong of the statutory test was met because P.G.'s health and development had been harmed by G.M.'s challenges and will continue to be harmed if rights are not terminated.
In evaluating the second prong, Judge Whipple relied upon G.M.'s continued untreated mental health issues which, as she observed, were not "even minimally addressed throughout this litigation." To reiterate, the statutory factors are not discrete and separate. See K.H.O., supra, 161 N.J. at 348. As the judge also noted, by the final hearing, G.M. had not visited with her child for five months. Permanency was necessary for P.G.'s own mental health, and simply unavailable unless the successful foster placement where he had lived for nearly two years become his adoptive home. P.G. had a right to a safe and permanent home, and has one with his aunt and uncle.
As to the third prong, the Division offered G.M. numerous referrals for substance abuse evaluations and treatment, psychological and psychiatric evaluations, mental health services including individual therapy, and Division supervised visitation. None of the services were engaged in by G.M., who did not appear for various evaluations scheduled by the Division, including a bonding evaluation, prior to the final hearing. G.M. did not engage in psychiatric treatment recommended to her by any entity, even when a condition of her discharge from hospitalizations. The record substantially supported Judge Whipple's determination that the Division did what it could without success to create circumstances resulting in an alternative to termination. Contrary to G.M.'s argument on appeal, the court did consider the issue of KLG and rejected it. C.R. and her husband did not want KLG but wanted to adopt instead. See N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J.Super. 333, 341 (2008) ("If adoption is readily available, . . . KLG cannot be used to defend against termination of parental rights."). Given the need for the child to remain with his foster parents in this case, the court properly disposed of this prong of the test.
Lastly, the judge considered the issue of whether termination of parental rights would do more harm than good as required by the statute. She noted that P.G. had been placed with his aunt and uncle since May 7, 2010. They provided a stable home and wanted to adopt him. P.G. himself reported he was doing well in school and sports. He wants to be adopted, and according to Singer, perceives his current resource parents to be the central figures in his life. If the past is predictive of the future, reunification with his biological mother would not succeed. Termination would not do more harm than good. Therefore, we concur with the judge's findings on this issue as well.