September 26, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
C.B. and K.B., Defendants R.B., Intervenor-Appellant IN THE MATTER OF I.B., a minor NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
K.B. and C.B., Defendants-Appellants IN THE MATTER OF THE GUARDIANSHIP OF I.L.B., a minor
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FN-12-123-11 (A-1967-11) and FG-12-54-12 (A-5809-11 and A-5812-11).
Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Durrell Wachtler Ciccia, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant K.B. (Kisha M.S. Hebbon, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant C.B. (Richard Sparaco, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services in A-1967-11, A-5809-11 and A-5812-11 (Lewis A. Scheindlin, Assistant Attorney General, of counsel in A-1967-11, A-5809-11 and A-5812-11; Meredith Blackman, Deputy Attorney General, on the brief, in A-1967-11; Lisa F. Nemeth, Deputy Attorney General, on the brief, in A-5809-11 and A-5812-11).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.B. in A-1967-11 and minor I.L.B. in A-5809-11 and A-5812-11 (Melissa R. Vance, Assistant Deputy Public Defender, on the briefs, in A-1967-11, A-5809-11 and 5812-11).
Before Judges Fisher, Espinosa and Koblitz.
K.B., the biological father, and C.B., the biological mother, appeal from the June 15, 2012 order terminating their parental rights to I.L.B., who was born in August 2010. R.B., the maternal grandmother, appeals from the failure of her assigned counsel to file a motion to intervene, arguing counsel was ineffective. We write one opinion addressing the consolidated appeals of the parents as well as the issue raised by R.B. in her appeal. We affirm in all respects.
I.L.B. was born prematurely with cocaine in her system. Her mother also tested positive for cocaine. Eight days after she was born, the infant was removed from the hospital and placed into the foster home where she remained throughout the litigation. According to the Division's expert, she is bonded to her foster parents who wish to adopt her. Her biological parents have been plagued by substance abuse and criminal court involvement. Both parents were offered scheduled visits with their child as well as substance abuse counseling. At the time the Division of Youth and Family Services (Division) filed the guardianship complaint, when I.L.B. was a year old, neither parent was available to care for her. K.B. was incarcerated. C.B. was in the intensive care unit of the Somerset Medical Center, after she suffered from an illness while incarcerated that resulted in her becoming comatose. She remained in a nonresponsive state throughout the proceedings with little hope of recovery, residing in a nursing home.
K.B. attended various drug rehabilitation programs during the course of litigation. Naturally, his daughter was not bonded to him as she did not have the opportunity to spend time with him. K.B. was essentially a stranger to the child, who called out for her foster parents during the bonding evaluation with him. K.B. was incarcerated again at the conclusion of the trial in June 2012 and anticipated remaining so for the next six months and unable to take care of his child for twelve months after his release from incarceration. By that time, I.L.B. would have spent the first four years of her life with her foster parents.
The maternal grandmother, R.B., has custody of C.B.'s older daughter. The court appointed a lawyer to represent her in the Title 9 abuse and neglect proceedings before the guardianship complaint was filed. R.B. was permitted visits with I.L.B., but was ruled out as a resource for the child because she could not bring her home into compliance with Division and licensing safety standards during the one year period between I.L.B.'s birth and the filing of the guardianship complaint.
The father, K.B., raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN FINDING THAT THE BEST INTERESTS TEST OUTLINED IN N.J.S.A. 30:4C-15.1A WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
B. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT I.L.B.'S SAFETY, HEALTH, OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
C. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT K.B. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING I.L.B. OR IS UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR I.L.B.
D. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT D.Y.F.S. MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP K.B. CORRECT THE CIRCUMSTANCES WHICH LED TO I.L.B.'S PLACEMENT OUTSIDE OF THE HOME.
E. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT TERMINATION OF K.B.'S PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD.
The mother, C.B., raises the following points on appeal:
POINT I: THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1 WERE MET.
(A) THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT I.L.B.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG.
(B) THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT C.B. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING I.L.B., OR THAT THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM.
(C) THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT IT CONSIDERED ALTERNATIVES TO TERMINATION OF C.B.'S PARENTAL RIGHTS.
(D) THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT TERMINATION OF C.B.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER THE FOURTH PRONG.
The standard of review in parental termination cases has been established by the New Jersey Supreme Court:
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
The Supreme Court has "consistently imposed strict standards for the termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citation omitted). When seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following factors:
(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.
"[T]h[e]se 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). "Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347 (1999) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
Although the fact that I.L.B. tested positive for cocaine at birth is not sufficient in itself to demonstrate abuse or neglect on the part of the mother, N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22-24 (2013), C.B. had long-standing drug problems that she was not able to remediate and did not have stable housing for her newborn child. The Division could not locate her for the first few months of litigation. She attended her scheduled visits sporadically and was not cooperative with drug abuse treatment.
The Division made reasonable efforts in providing her with substance abuse evaluations, recommendations for treatment and supervised visitation. As C.B. remains in a long-term non-responsive medical state,  she is clearly not in a position to be a parent to her young daughter. The guardian ad litem appointed for C.B. pursuant to Rule 4:26-2 reported to the court in a March 9, 2012 letter that he went to the nursing home and observed C.B. in an unconscious state. He talked to her doctor, who reported that C.B. had remained in this condition for the past year. The doctor reported that due to infections, C.B. had been back and forth to the hospital and "is not likely to get better in the foreseeable future and . . . if anything, her condition will regress."
K.B. has five older children who live with their mother. He has had long-term substance abuse, domestic violence and criminal problems. The Division provided supervised visits that he only attended occasionally. K.B. did not successfully complete any of the various drug treatment programs he attended, other than one completed while incarcerated.
The trial judge found that the Division proved by clear and convincing evidence that it was in the best interests of I.L.B. to terminate both parents' rights. Unfortunately, due to illness and incarceration, neither parent was able to assume the responsibility of being a parent nor was likely to do so in the near future. The trial judge correctly determined that the Division proved by clear and convincing evidence all four prongs required for termination of both defendants' parental rights.
R.B., the maternal grandmother, raises one point only on appeal, that she was denied the effective assistance of counsel. R.B. claims that her appointed counsel was ineffective in not making a motion to intervene in the Title 9 action that concluded prior to the termination of the guardianship trial. Appeals of certain orders in a Title 9 case are rendered moot upon the filing of a Title 30 guardianship proceeding. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J.Super. 252, 262-64 (App. Div. 2009). R.B. was ruled out as a placement option in the Title 9 action. We do not view R.B.'s claim to be rendered moot by the subsequent guardianship filing, as placement of the child is fundamental to the best interest of the child, which is always paramount in a Title 30 trial. See K.H.O., supra, 161 N.J. at 348.
The court in the guardianship trial noted that during the Title 9 litigation R.B. was unable to put her home into compliance with the Division and licensing standards within a year, although given assistance by the Division. Because of this lack of compliance, the Division ruled out R.B. as a caretaker. The Division set forth the procedures for filing an administrative review in its June 30, 2011 rule-out letter. The letter states:
If you disagree with this decision you may, within 20 days of the date of this letter, request a review of the decision by an agency representative who has no role in this case. Please be aware of the possibility that termination of parental rights may occur if the child(ren) remains in the Division's care for more than six months, and that the child(ren) may be placed for adoption.
The letter further provided R.B. with the contact information for both the local agency representative and the administrative unit in Trenton if she had any questions about the review process. The record does not reflect that R.B. pursued these administrative appeal procedures.
R.B. does not point to any authority for the proposition that a non-caretaker grandmother has a right to counsel in Title 9 or Title 30 proceedings. Natural parents in a Title 30 termination case have both a constitutional and statutory right to counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2006) (citing N.J.S.A. 30:4C-15.4(a)). Our Supreme Court adopted the two-pronged ineffective assistance of counsel standard for criminal cases, Strickland v. Washington, 466 U.S. 668 104 S.Ct. 2052 80 L.Ed.2d 674 (1984) for Title 30 termination proceedings B.R. supra 192 N.J. at 308-09 We do not criticize the trial judge for allowing R.B. to be heard or appointing counsel on her behalf given the preference of placing children with relatives and siblings N.J.S.A. 9:6B-4(b); N.J. Div of Youth & Family Servs. v K.B.
353 N.J.Super. 623 636 (App Div 2002) Because RB did not have the right to counsel however she was not entitled to legally effective counsel and thus her claim to ineffective assistance of counsel is without merit.
We do not intend to imply that her assigned counsel was not effective as any application to intervene would have been doomed to fail Even resource parents or relatives who provide care for a child have only a right to be heard N.J.S.A. 9:6-819a and are not permitted to directly intervene in child protective services proceedings N.J. Div of Youth & Family Servs v. DP & OB, 422 N.J.Super. 583 (App. Div. 2011) RB did not provide care at any time to ILB and therefore was certainly not entitled to intervene.