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New Jersey Division of Child Protection & Permanency v. A.J.

Superior Court of New Jersey, Appellate Division

September 16, 2013

A.J., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.E.V.J., a minor.


Submitted September 9, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-07-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Swang Oo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent A.E.V.J. (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Kennedy and Guadagno.


Defendant A.J. appeals the termination of her parental rights to her daughter, A.E.V.J. (Alice)[1], born August 21, 2010. Following trial, the Family Part entered judgment terminating defendant's parental rights and awarding guardianship of Alice to the Division of Youth and Family Services (the Division).[2]

On appeal, defendant argues the following:

A. The Division Did Not Prove By Clear And Convincing Evidence That [Defendant] Harmed Her Child [Alice] And Therefore The Trial Court's Determination As To The First Prong Of The Statute Is Not Supported By Substantial, Credible Evidence.
B. There Was Not Clear And Convincing Evidence To Support The Trial Court's Determination That [Defendant] Was Unwilling Or Unable To Parent [Alice] And The Trial Court's Decision Is Not Supported By Substantial, Credible Evidence.
C. The Division's Efforts To Reunify The Family Were Insufficient To Satisfy Its Obligations Under The Third Prong.

Having considered these arguments in light of the record and applicable law, we affirm.


We discern the following facts from the trial record.

Defendant is 34 years of age and Alice is the fourth of five children born to her. Defendant has an extensive history of mental illness and has been involved with the Division since 2007. Defendant's oldest child, born in 2006, was placed with a relative; the next two children, born in 2008 and 2009, were the subjects of guardianship proceedings brought by the Division and defendant's parental rights as to them were terminated by judgment of the Family Part; the youngest child, born in 2012, is presently under the care, custody and supervision of the Division and has been placed in a foster home.

Four days after her birth, the Division effected an emergency removal of Alice from the custody of defendant. Two days later, the Family Part confirmed that it would be contrary to Alice's welfare to remain in defendant's custody due to her "inability to care or parent, substance abuse, mental health issues and refusal of services." Alice is currently under the care of the same foster parent who has cared for her since the emergency removal.[3]

Prior to Alice's birth, defendant was diagnosed with schizo affective disorder, bipolar disorder and severe personality disorders. Her I.Q. is reported as 69. She has a history of psychiatric hospitalizations undertaken to stabilize her symptoms and behavior. Robert Kanen, Psy.D., examined defendant in May 2010 during the guardianship proceedings involving her older children, and opined that her mental, cognitive and emotional problems "seriously impair her ability" to care for a child and that returning a child to her care would expose the child to "risk of harm." He added that defendant's problems are "chronic" and unlikely to change.

In a second evaluation of defendant undertaken in connection with this proceeding on January 12, 2012, Kanen determined that defendant had not complied with the Division's required mental health programs and could not provide Alice with a safe and secure home; that her mental, emotional and cognitive problems again "seriously impair" her ability to care for a child; and that these conditions are "unlikely to change."

Defendant was ordered to comply with mental health counseling, but did not comply; was terminated from the YMCA Supervised Visitation Program in October 2010 for failure to show up for visits with Alice; failed to appear in court for compliance reviews, compelling the court to schedule a proof hearing on termination of parental rights on December 7, 2011, which the court vacated that day when defendant appeared; and failed thereafter to attend a court-ordered intake at Clifton Adult Mental Health Services.

Defendant underwent a psychiatric examination by Samiris Sostre, M.D., on December 29, 2011, who also had undertaken an earlier evaluation of defendant in connection with guardianship proceedings pertaining to her other children. Dr. Sostre found that defendant failed to comprehend her need for treatment and that her history of noncompliance placed her at "high risk of noncompliance in the future." The doctor added that defendant's ability to parent was "very impaired."

On April 27, 2012, the Division advised the court that defendant had been missing for several months and consequently, supervised visitation had stopped. The Division also advised that defendant last saw Alice one year earlier, but had now left the State and was pregnant again. The Division received a report from defendant's relative in July 2012 that defendant was seen with a newborn living on the street. The relative reported that she saw the infant drinking Gatorade and suffering from a severe diaper rash. The Division located defendant at a shelter and removed the infant from defendant's care on July 26, 2012, placing him in Alice's foster home. That same day, defendant was also arrested and charged with simple assault.

At the guardianship trial on August 8, 2012, the Division presented three witnesses: a Division caseworker; the Division adoption supervisor; and Kanen. Defendant presented no witnesses and offered one document into evidence, an investigation summary report from July 26, 2012.

The Division caseworker testified that defendant had visited Alice only six times over a two year period, with five of the visits having taken place in December 2010. She also testified that defendant was not compliant with court orders for her participation in an adult mental health clinic. With regard to the Division's effort to place Alice with a relative of defendant, the caseworker testified that, prior to the birth of Alice, she met with defendant and her twin sister, who was later ruled out as a potential placement. In contrast, Alice's foster parent had expressed an interest in adopting Alice from the beginning, and repeated her interest at the permanency hearing. Therefore, the Division's plan for Alice was adoption by the foster parent. The judge considered the caseworker's testimony to be credible.

Kanen testified that he had issued two reports based on his 2010 and 2012 evaluations of defendant and the results of cognitive assessment and personality tests. He testified that defendant would "have great difficulty coping with the demands of daily life . . . [and] child care." Further, defendant has "symptoms . . . consistent with having a bipolar disorder . . . she's very emotional, she's emotionally reactive. She's unstable[;]" she is "very self-absorbed, pretty much primarily focused on her own needs, not characteristics that you'd want to see in somebody with young children." With regard to defendant's parenting capacity, Kanen concluded that "she's not able to provide her children with a permanent safe and secure home, that her prognosis for change is poor." The trial judge found Kanen's testimony to be credible and based on "a reasonable degree of psychological certainty[.]"

The trial judge found that the Division had satisfied each statutory prong by clear and convincing evidence and determined that defendant's parental rights should be terminated as to Alice. This appeal followed.


In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:

(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.[4]
[N.J.S.A. 30:4C-15.1(a).]

These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). While a parent's right to raise his or her child is constitutionally protected, id. at 346, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm judged by the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Our scope of review in a termination of parental rights case is especially limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Appellate courts should give deference to the Family Part's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). The trial court's findings should not be disturbed unless they are so clearly mistaken or unsupported that our intervention is necessary to correct injustice. F.M., supra, 211 N.J. at 448. "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[.]" Id . at 448-49.

Here, the trial judge's conclusions regarding all four statutory factors were supported by clear and convincing evidence.

We address prongs one and two together, because "evidence that supports one informs and may support the other." See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1(a)(1); see K.H.O., supra, 161 N.J. at 348 ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship."). The fact that there is no evidence that defendant physically harmed Alice does not preclude a prong one finding. See Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) ("The absence of physical abuse or neglect is not conclusive[.]" (internal quotation and citation omitted)). It is sufficient to prove the risk or danger of harm. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 440 (App. Div. 2001). The concern is not only with actual harm to the child but also with the risk of harm, as the court is not required to wait to intercede until a child is irreparably impaired by parental inattention or neglect. D.M.H., supra, 161 N.J. at 383. "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

Here, the trial judge found that the Division satisfied the first prong based on Kanen's report and testimony, that defendant's mental illness and her inability to address her illness posed a risk to Alice's safety, health and development, and that defendant "cannot cope with the daily stresses of raising children." The judge also found that there was a risk to Alice due to defendant's mental illness and that defendant is not going to improve, having refused to accept treatment.

The second prong is aimed at determining whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. The court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. Under the second prong, a trial court determines whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.

As to the second prong, the trial judge found that Alice had been in placement for two years and there would be harm in separating her from her foster parents, and that this harm would be serious and enduring particularly since defendant visited only six times. Moreover, defendant was unwilling to rehabilitate herself through the Division's mental health services.

Defendant argues that the Division's efforts prior to the birth of Alice should not be considered efforts toward reunification with Alice. However, defendant's past problems parenting her older children are probative of her future conduct as Alice's parent. See J. V. M., 157 N.J.Super. 478, 493 (App. Div.) (addressing parents' treatment of other children, and noting that a court may rely on past conduct when trying to predict future conduct), certif. denied, 77 N.J. 490 (1978). Evidence of the harm that Alice would suffer if removed from her foster parents also supports the court's prong two decision. See N.J.S.A. 30:4C-15.1(a)(2) (stating harm "may include evidence that separating the child from his [or her] resource family parents would cause serious and enduring emotional or psychological harm").

There was ample support for the trial judge's finding that prongs one and two were met. The evidence of defendant's mental health problems, resistance to treatment, and unstable living arrangements, all supported the judge's conclusion that Alice's health and development were endangered and would continue to be endangered by defendant.

The third prong of the best interests standard requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 267 n.10, (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

A court must consider whether a parent actively participated in the reunification effort. See D.M.H., supra, 161 N.J. at 390. The reasonableness of the Division's efforts "is not measured by their success." Id . at 393. Ultimately, "[t]he failure or lack of success of the [Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007).

Here, the trial judge determined that the Division had made reasonable efforts to provide services to assist defendant with reunification, including arranging for her admission into and transportation to mental health treatment programs, substance abuse initiatives and other programs, but defendant was uncooperative and unwilling to participate. The Division continued to make such efforts to place defendant in a mental health treatment program despite defendant's unwillingness to attend. Despite the visitation schedule arranged by the Division, defendant has only visited Alice six times in two years. Defendant also failed to comply with recommended services, including therapy, to address her parenting issues.


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