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New Jersey Division of Child Protection and Permanency v. C.C.

Superior Court of New Jersey, Appellate Division

October 23, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
C.C. and L.M., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF F.M.M., a minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-25-12.

Joseph E. Krakora, Public Defender, attorney for appellant C.C. (Anthony J. Vecchio, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant L.M. (Brian D. Driscoll, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian for minor-respondent F.M.M. (Todd Wilson, Designated Counsel, on the brief).

Before Judges Yannotti, Ashrafi and Leone.

PER CURIAM

C.C. and L.M. appeal from a judgment entered by the Family Part on August 23, 2012, terminating their parental rights to the minor child, F.M.M. We affirm.

I.

C.C. and L.M. are the parents of F.M.M., who was born in August 2010, when C.C. was forty-three years old and L.M. was fifty-three years old. In October 2010, F.M.M. was admitted to a hospital with first and second-degree burns to her legs, abdomen and genitalia. F.M.M. was scalded while C.C. was giving the child a bath. She left the child in the sink, turned off the cold water and left the hot water running. C.C. heard the child's screams and removed her from the water.

C.C. did not, however, immediately seek medical assistance. L.M. had been out shopping when F.M.M. was burned. He returned about twenty minutes after the child was injured. He told C.C. to call the doctor. Two persons who were living with C.C. And L.M. reported that it took C.C. an hour to seek emergency medical care.

The Division's workers investigated the incident. Among other things, the workers learned that C.C. was taking medications for certain medical problems, which include cerebral palsy. C.C. reported that she was unemployed but received monthly Supplemental Security Income. L.M. also was unemployed, but volunteered at a local mission, sold newspapers at a nearby fast-food restaurant, and received food stamps. The persons living with C.C. and L.M. in their two-bedroom apartment provided some financial assistance.

The Division determined that the allegations of abuse or neglect had been substantiated. Accordingly, on November 1, 2010, the Division conducted an emergency removal of the child from C.C.'s and L.M.'s care. On November 3, 2010, the Division filed an order to show cause and complaint in the Family Part, seeking care, custody and supervision of the child. The judge entered an order on that date, granting the Division's application. F.M.M. was placed with a foster mother whose primary language is Spanish.

Thereafter, the Division provided services to C.C. and L.M. with the goal of reunification. The Division referred C.C. and L.M. to psychological, psychiatric and substance abuse evaluations, parenting skills courses, and individual counseling.

C.C. was referred for intensive outpatient substance abuse treatment but the provider determined she was not an appropriate candidate for the program because of her cognitive limitations and use of prescription medications. C.C. and L.M. were permitted to have weekly supervised visits with F.M.M., but during some of those visits, C.C. acted inappropriately. C.C. also was referred for a neurological evaluation. The doctor who performed the evaluation said that C.C. lacked the capacity to care for F.M.M.

In January 2011, C.C. and L.M. informed the Division that one of the persons who had been living with them moved out and they needed help with their rental payments. The Division referred C.C. and L.M. to the local welfare office for assistance.

In February 2011, the trial court conducted a fact-finding hearing and determined by a preponderance of evidence that C.C. had abused or neglected F.M.M. by allowing her to be scalded in the bath. The court found that C.C.'s conduct amounted to gross negligence.

In March 2011, C.C. and L.M. were evicted from their apartment, and the Division again referred them to the local welfare office for assistance. They moved to a hotel. In July 2011, C.C. and L.M. advised the Division that they had found a new home.

The Division agreed to provide C.C. and L.M. with money for a security deposit. The caseworker spoke to the landlord, who said C.C. and L.M. had not paid any rent and he was going to evict them because they had been disturbing other tenants.

In September 2011, C.C. and L.M. were evicted from the apartment. They were sleeping in the Division's offices. Thereafter, C.C. and L.M. moved to a boarding house. They had a single room and they shared bathroom facilities with other persons residing there.

In October 2011, the trial court conducted a permanency hearing and approved the Division's plan for termination of C.C.'s and L.M.'s parental rights, with adoption by the foster parent to follow. On January 17, 2012, the Division filed its complaint seeking guardianship of F.M.M.

The trial in the matter took place in July and August,

2012.The Division presented testimony from Janice Braxton, the caseworker assigned to the family; Dr. Alexander Iofin, who was qualified as an expert in psychiatry; and Dr. Barry Katz, the Division's expert psychologist. C.C. testified and presented testimony from Dr. Gerard Figurelli, a psychologist. L.M. did not testify or present any witnesses.

On August 23, 2012, the trial judge filed a written opinion in which he found that the Division had presented clear and convincing evidence establishing the four prongs of the best interests test in N.J.S.A. 30:4C-15.1(a) for termination of C.C.'s and L.M.'s parental rights. The judge entered an order memorializing his decision. These appeals followed.

II.

C.C. and L.M. argue that the Division failed to establish the four statutory criteria for termination of their parental rights. We do not agree.

In a proceeding seeking the termination of parental rights, the Division has the burden of proving each of the criteria in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 606 (2007). The Division must show:

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

The 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 scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993)). In addition, we accord special deference to the findings of the judges of the Family Part, because of their expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)).

A. C.C.'s Appeal.

1. The First Prong.

C.C. argues that the Division failed to prove that F.M.M.'s safety, health or development were endangered by the parental relationship. C.C. acknowledges that she injured F.M.M. but maintains that the child was not permanently harmed. She asserts that there was no evidence that she harmed the child before or after this incident. C.C. contends that it would be "grossly unfair" to terminate her parental rights due to a "momentary lapse in judgment." We disagree.

We note initially that the trial judge did not find that F.M.M.'s safety, health or development were harmed by her relationship with C.C. merely because C.C. caused the child to be burned. Rather, the judge found that the "most glaring" parenting issue related to C.C.'s and L.M.'s failure to find adequate housing for the family, a problem that plagued the family before and after F.M.M.'s removal.

In his opinion, the judge noted that both parents had not worked in years and there was little likelihood they would be able to resolve their housing problem. The judge also recognized that F.M.M. was burned accidentally, but pointed out that C.C.'s limitations "are what permitted this dangerous incident to happen." The judge determined that the State's experts had credibly testified concerning C.C.'s limitations.

In our view, there is sufficient, credible evidence in the record to support the judge's findings. As we stated previously, C.C. and L.M. failed to maintain safe and stable housing, which precluded reunification. Moreover, the State's experts explained that C.C.'s cognitive deficits and her physical limits placed the child at risk.

2. The Second Prong.

Next, C.C. argues that the Division failed to establish that she is unwilling or unable to provide a safe and stable home for F.M.M. C.C. contends she was largely cooperative with the Division and made significant efforts to improve her capacity to be an adequate parent. She asserts that Dr. Figurelli's testimony indicates that she took productive steps in improving her parenting skills. We cannot agree.

Here, the trial judge found that the parents had been willing to participate in services that would allow "them to be safe parents." The judge determined, however, that neither parent would be able to safely parent F.M.M. "regardless of the services provided."

The judge noted that C.C. and L.M. were not able to provide a safe and stable home for the child. The judge also found that delaying a permanent placement would cause further harm to the child because she has a bond with her foster parent. Removal of the child from her foster parent would cause the child "enduring emotional harm[.]"

The judge's findings are supported by sufficient, credible evidence. Dr. Iofin testified that even if C.C. received all of the recommended services, including individual therapy and substance abuse treatment, her cognitive limitations would nevertheless preclude her from being a capable parent. In addition, Dr. Katz testified that C.C.'s prognosis for change was extremely poor. He opined that C.C.'s cognitive limitations and other problems rendered her unsafe to parent a child.

While Dr. Figurelli testified that C.C. could safely parent a child with intensive parenting instruction, the judge found the doctor's opinion was unpersuasive. The judge found it "telling" that Dr. Figurelli had performed a psychological evaluation of C.C. and yet did not testify about her "psychological make-up." The judge found the testimony of the State's experts to be credible, while Dr. Figurelli's testimony was not.

We must defer to the judge's assessment of the expert testimony because the judge conducted the trial, observed the witnesses and heard them testify. Cesare, supra, 154 N.J. At 412 (citing Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Our deference to the judge's credibility findings is warranted because the judge has a better perspective than an appellate court to evaluate the veracity of the witnesses. Ibid. (citing Pascale, supra, 113 N.J. at 33).

3. The Third Prong.

C.C. additionally argues that the Division failed to make reasonable efforts to return F.M.M. to her care. She maintains that the Division never provided sufficient assistance to address the family's housing problem, and the services that the Division provided were not sufficiently tailored to her particular disabilities. Again, we disagree.

The judge found that the Division made reasonable efforts to address the circumstances that led to the child's removal from C.C.'s and L.M.'s care. The record shows that the Division did, in fact, provide C.C. with an array of services. The judge determined, however, that "no amount of services would be able to alter" C.C.'s cognitive and physical limitations. There is sufficient, credible evidence in the record to support these findings.

C.C. nevertheless argues that the Division was obligated to do more because she suffers from various disabilities. She contends the Division should have referred her to the State's Division of Developmental Disabilities (DDD) and the Division of Vocational Rehabilitation (DVR). However, the record shows that the Division referred C.C. to DDD for services. C.C. claimed that the Division never offered her these services, but the judge found that C.C.'s testimony on this point was not credible. Furthermore, there is no evidence indicating that if C.C. had been referred to the DVR, she would have been capable of securing employment or providing F.M.M. with a safe and stable home.

C.C. additionally argues that the Division's failure to provide her with adequate services to address her disabilities constitutes unlawful discrimination under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, the Americans with Disability Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, and the Family Leave Act (FLA), N.J.S.A. 34:11B-1 to -16. C.C.'s reliance upon the NJLAD, ADA and FLA is misplaced. These statutes do not apply in this setting because the "guiding principle" in a termination–of-parental-rights case is the "best interests" test in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J.Super. 418, 441-42 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

4. The Fourth Prong.

C.C. further argues that the Division failed to establish that termination of her parental rights would not do more harm than good. C.C. contends F.M.M. was "inexplicably" placed with a family that speaks Spanish, while she and L.M. speak English. C.C. contends that this prevented her from "furthering" her bond with the child during her visits. She additionally argues that she has a significant bond with F.M.M. Again, we disagree.

Here, the trial judge noted that F.M.M. had been placed in her foster home when she was two-and-one-half months old. The judge found that separation of F.M.M. from her foster parent would "most assuredly cause great and enduring harm to the child." The judge additionally determined that removal of F.M.M. from her foster parent "would cause far greater harm" than termination of C.C.'s and L.M.'s parental rights.

In our view, there is sufficient, credible evidence in the record to support the judge's findings. At the trial, Dr. Katz testified concerning his bonding evaluations. He stated that F.M.M. would suffer an insignificant amount of harm if C.C.'s parental rights are terminated. Dr. Katz opined that any harm would be remediated by F.M.M.'s relationship with her foster parent. He stated that F.M.M. "clearly identifies the foster mother as her primary nurturing figure" and the foster parent is the "only securely bonded figure in [F.M.M.'s] life."

The judge also rejected C.C.'s contention regarding the child's placement in a Spanish-speaking home. The judge stated that "language is not the problem in this case." The judge found that the problem which prevented reunification of the child with her birth parents "is that each parent has demonstrated significant psychological and psychiatric deficits" which rendered them incapable of caring for and supporting a child. The record supports these findings.

Accordingly, we conclude that the Division presented clear and convincing evidence establishing all four prongs of the best interests test in N.J.S.A. 30:4C-15.1(a) as to C.C. Therefore, we affirm the order terminating C.C.'s parental rights to F.M.M.

B. L.M.'s Appeal.

1. The First Prong.

L.M. argues that the Division failed to show that F.M.M. was harmed by her relationship with him. L.M. contends that he did nothing to endanger F.M.M.'s safety, health or development. He says the child was removed from his and C.C.'s care because she was burned, not because of inadequate housing. L.M. asserts that he was out of the house when F.M.M. was scalded and there is no factual basis for the judge's finding that he endangered F.M.M. We cannot agree.

Here, the trial judge noted that, while L.M. does not have the same cognitive limitations as C.C., he has not been able to obtain employment for several years. The judge pointed out that since the child was removed, the family had not been able to find adequate housing in which to raise a child and there was little likelihood they would be able to resolve this problem. Dr. Katz testified that the lack of adequate housing posed a serious threat to child care. In our view, there is sufficient, credible evidence in the record to support the judge's findings on the first prong.

2. The Second Prong.

Next, L.M. argues that, assuming F.M.M. was harmed by his relationship with her, the Division failed to show that he was unable or unwilling to eliminate that harm. He notes that the judge found he would not be able to protect the child from C.C. He claims this finding was "fatally flawed and based entirely on conjecture." We disagree.

Dr. Katz noted that at times L.M. could not cope with C.C.'s anger and he would leave the house when her anger materialized. Dr. Katz said such behavior posed a significant danger to a child left in C.C.'s care. The record therefore supports the judge's finding that L.M. would not be able to protect F.M.M. from C.C.

L.M. additionally contends that he acted appropriately when C.C. scalded the child. He notes that he was out of the house when the child was burned. He says that any delay in securing medical help should not be attributed to him. However, the judge did not attribute any blame to L.M. for the burn incident. Thus, L.M.'s contentions are entirely without merit.

L.M. also argues that there is no support in the record for the judge's assumption that he intends to continue his relationship with C.C., L.M. claims that he clearly expressed his intent to secure employment, get his own apartment and obtain full custody of F.M.M. However, Dr. Katz testified that L.M. had no plans to raise F.M.M. on his own and he was not capable of caring for the child on an ongoing daily basis. Moreover, since F.M.M. was removed from C.C.'s and L.M.'s care, C.C. and L.M. have remained together. C.C. also testified that she had misgivings about obtaining services from DDD because she preferred to move to a place with L.M.

Thus, there is sufficient, credible evidence in the record to support the judge's finding that C.C. and L.M. are likely to continue their relationship. L.M.'s claims to the contrary are without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).

3. The Third Prong.

L.M. also argues that the Division failed to make reasonable efforts to address the circumstances that led to the child's placement in foster care. Like C.C., L.M. contends that the Division's efforts to address the family's housing problem were deficient. We cannot agree. As we have explained, the record supports the trial judge's finding that the Division made reasonable efforts to assist C.C. and L.M. address their housing needs.

L.M. further argues that the Division did not do enough to assist him in obtaining employment. The record shows that L.M. had been unemployed for years, although he volunteered at a local mission and sold newspapers near a fast-food restaurant. The Division provided L.M. with an array of services, but there is no evidence that L.M. made any effort to obtain gainful employment.

L.M. also contends that the Division never considered him as a single parent for the child, as an alternative to termination of his parental rights. However, as we have explained, L.M. never had a plan to parent the child on his own and the Division's expert testimony clearly and convincingly established that he was not qualified to do so.

4. The Fourth Prong.

L.M. additionally contends that the Division failed to establish that termination of his parental rights would not do more harm than good. Again, we disagree. The record shows that L.M. does not have a bond with F.M.M. and the child has a strong bond with her foster parent. The testimony of the Division's experts fully supports the judge's determination that F.M.M. would not suffer substantial harm if L.M.'s and C.C.'s parental rights are terminated, but the child would be substantially harmed if she is removed from her foster parent.

Like C.C., L.M. argues that placement of F.M.M. with a Spanish-speaking foster parent impeded his ability to develop a bond with the child. However, as we stated previously, the record supports the judge's finding that "language is not the problem in this case." The record shows that C.C.'s and L.M.'s limitations rendered them incapable of parenting a child.

Accordingly, we conclude that the Division established all four prongs of the best interests test in N.J.S.A. 30:4C-15.1(a) as to L.M. Therefore, we affirm the order terminating L.M.'s parental rights to F.M.M.

Affirmed.


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