October 24, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
C.L.R.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.D.R., a minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-106-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas H. E. Hallett, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.D.R. (David R. Giles, Designated Counsel, on the brief).
Before Judges Sapp-Peterson, Lihotz and Hoffman.
Defendant, C.L.R.R. is the biological mother of A.D.R. (Alex), born to C.L.R.R. and A.S., on October 4, 2009. She appeals from a March 12, 2012 Family Part judgment terminating her parental rights to Alex and granting guardianship to the Division of Child Protection and Permanency (Division). On appeal, she argues the State failed to prove, by clear and convincing evidence, that termination of her parental rights was in Alex's best interests. The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm. Based upon our review of the record and applicable law, we are satisfied the Division proved by clear and convincing evidence the requisite statutory factors required to terminate defendant's parental rights. Accordingly, we affirm.
The trial occurred before Judge John A. Fratto. The Division offered its case file into evidence, without objection, as well as testimony from its caseworker Lyanna Torres and its expert, Dr. Linda Jeffrey, a psychologist. Defendant testified on her own behalf and offered no other witnesses.
The evidence from which Judge Fratto reached his decision revealed that in addition to Alex, defendant has two other biological children, Carrie, born February 22, 1998 and Henry, born October 18, 2011. Although the Division had been referred to the family in 2008, in connection with allegations of abuse or neglect related to Carrie, the allegations were unsubstantiated. However, defendant agreed to a safety plan, which among other conditions, provided that defendant would provide her children with a sanitary environment free from safety hazards, complete a substance abuse evaluation and attend the Center for Family Services (CFS).
In April 2010, police notified the Division that they had executed a search warrant and seized illicit drugs from a home where defendant and her children were living with defendant's sister, Kelly, and Kelly's boyfriend, W.F. The Division took no action at that time. However, three months later, police executed a second search warrant at the same residence and seized more illicit drugs. The Division conducted an investigation and learned that Kelly was facing eviction from the residence and that neither she nor defendant had any place to go.
Defendant agreed to a second safety plan, which provided that she would: (1) not permit W.F. to act as a caretaker for the children, (2) focus upon finding safe and stable housing, and (3) re-apply for New Jersey Family Care for Alex, who had recently been treated for a rash. Defendant failed to comply with most of the safety plan provisions. As a result, the Division obtained an order for care, custody and supervision of the children. Defendant's former husband, W.R., took physical custody of Carrie, who is his biological daughter, and Alex was placed in foster care. The order afforded defendant twice-weekly supervised visitation with Alex; required that she submit to a substance abuse evaluation and psychological evaluations; and mandated that she comply with all recommendations. Nearly identical terms were provided in a subsequent order to show cause, entered on August 18, 2010.
Over the next several months defendant was unable to secure stable housing, living briefly with friends and in area hotels. She missed scheduled visits with Alex, failed to attend Parent Resource Center intake appointments and missed two separately scheduled substance abuse evaluations
Defendant completed a psychological evaluation with Meryl E. Udell, Psy.D., on October 5, 2010, after which Dr. Udell opined defendant "demonstrated poor judgment in allowing her children to remain with her sister[, ]" as "her sister put [defendant]'s children at risk, and [defendant] should not have been so quick to entrust her children to her [sister] again." She further recommended that defendant participate in parenting skills classes, obtain stable housing, and develop a realistic plan for maintaining stable housing.
Following a factfinding hearing held on November 15, 2010, the court entered an order on November 30, 2010, continuing Alex in the Division's custody based upon its finding that defendant had placed her children "at risk of harm" by her continued presence in a home where she knew illicit drugs were present. The court's order required defendant to participate in a psychological evaluation, complete a hair follicle test, submit to random urine screens, attend parenting classes, cooperate with all services, and attend all scheduled visitations with Alex.
On January 25, 2011, defendant notified the Division she was going to be admitted to the hospital in February "so the doctors [could] try new medications to address her epilepsy." She informed her caseworker that she was living with family friends, was stable, and would like her children back. The caseworker reminded defendant she had yet to comply with court-ordered services, including hair follicle testing and parenting skills training. When defendant finally submitted to hair follicle testing, the results were positive for opiates, which defendant attributed to her hospital stay, alleging she had been prescribed Tylenol 3 with codeine for back pain.
On March 16, 2011, defendant advised her caseworkers she was pregnant with Henry. That same month, she failed to attend a scheduled visitation with Alex and a subsequent intake appointment with the Parent Resource Center.
On June 13, 2011, the court entered a permanency order approving the Division's plan to terminate defendant's parental rights to Alex, followed by adoption. The court found that defendant failed to complete drug treatment and parenting skills classes, and was unwilling to obtain "appropriate" housing.
On July 21, 2011, the Division filed a complaint for guardianship. At the initial hearing, defendant challenged the Division's provision of services. The court ordered the Division to provide defendant with $50 for substance abuse treatment. The court directed defendant to undergo psychological and bonding evaluations, to be performed by Dr. Jeffrey and to participate in the previously court-ordered substance abuse and parenting skills classes, submit to random urine screens, and to comply with all other recommendations.
Dr. Jeffrey testified she performed a battery of tests upon defendant, the results of which revealed that defendant was experiencing psychological tension, anxiety, and sadness based upon elevated scores on the anxiety and dysthymia scales, paired with defendant's reported health preoccupation, interpersonal alienation, emotional lack of control, and feelings of depression, emptiness, and hopelessness. She stated defendant's "profile raise[d] the possibility of denial problems related to drinking or drug use because individuals who show the profile that she generated typically report more involvement with alcohol or other drugs than [defendant] disclosed."
The doctor specifically opined that defendant's Substance Abuse Subtle Screening Inventory score was elevated in "the . . . area of defensiveness so that there may be alcohol and other drug problems that [she] is not reporting." Further, she testified that defendant's responses "didn't reflect motivation to engage in treatment" and suggested "[s]he may be somewhat defensive and reluctant to discuss personal problems."
Based upon Dr. Jeffrey's clinical findings, she opined to a reasonable degree of psychological certainty that defendant suffered from dysthymia, which is a "low level chronic depression" or "mood disorder with adjustment disorder anxiety" resulting in "difficulties dealing with ordinary everyday adjustment behavior." Additionally, Dr. Jeffrey noted the possibility "there may be major depression present[, ]" defendant suffered from personality disorder not otherwise specified (NOS) with borderline and paranoid features, meaning she showed traits of more than one personality disorder, and scored as having a "serious impairment[.]" When questioned as to her overall impression of defendant, Dr. Jeffrey testified:
The opinion that I formulated based on [a] reasonable degree of psychological certainty, [and] based on . . . all of the information that I had available to me, was that she had adjustment mood d[y]sregulation and personality disorder problems that decrease parenting capacity, that she would be likely to display poor parenting judgment and emotional immaturity, [and] that she therefore is not prepared to provide a minimal level of safe parenting.
When asked whether it would be possible to successfully treat defendant's issues, and if so, how long it would take, Dr. Jeffrey stated "[i]t is certainly the case that an individual can go into therapy and learn to manage a chronic illness"[;] however, she stated that the critical inquiry is how the individual responded to professional advice and treatment in the past. To exemplify the point that defendant was not particularly responsive to treatment, Dr. Jeffrey, by way of example noted that defendant had been advised by her physician that smoking cessation was crucial to treating her asthma, yet she continued to smoke. Dr. Jeffrey commented:
You can lead a horse to water but you cannot make [it] drink is a very pertinent old statement in this case. Therapy is not magical. Therapists cannot wave a wand and have a person engage in behavior change. They have to do it themselves. And it is one thing when someone is much younger and able to perhaps point to . . . a reason why one is not able to manage the domains of an adult life. It is something entirely different when someone is in their mid[-]thirties. There are choices that people make by then and it takes much, much longer in therapy for individuals to change the older that they get.
Dr. Jeffrey emphasized that Alex was not defendant's first child and, therefore, she was aware of the immunizations children require; yet, the doctor noted that when Alex was removed, he was nine to ten months old and had not received his immunizations. In Dr. Jeffrey's opinion, this omission demonstrated defendant exhibited "poor judgment and immature parenting."
Dr. Jeffrey additionally found that defendant also demonstrated poor coping and adjustment skills, which were not a direct consequence of her epilepsy. She explained that "lots of people who have epilepsy . . . are able to parent safely, " but opined that defendant had not demonstrated an ability to "actively organize the situation in order to cope with it and to be able to plan her contingencies in order to function given the problems she has." Consequently, Dr. Jeffrey concluded defendant did not currently have the ability to safely parent Alex, and would not develop such ability in the foreseeable future.
Addressing defendant's bond with Alex, Dr. Jeffrey testified that upon defendant's arrival for the bonding evaluation, Alex did not demonstrate "a great deal of spontaneous pleasure." She stated defendant had not brought snacks or toys, and when Alex rammed his pushcart repeatedly into a wall, defendant "didn't respond, she didn't offer structure or define behavioral limits" as one would expect of a parental figure. Dr. Jeffrey observed that Alex ignored defendant's request for a kiss, and believed that while defendant did not intend to berate Alex, defendant's "choice of nicknames [wa]s pretty poor[, ]" . . . noting that defendant called Alex "stinky" and "turkey, " nicknames, which in her opinion, "are not positive about the child." Further, she testified that "[Alex] did not seek proximity of contact with her."
Dr. Jeffrey expressed particular concern that defendant reported she "wasn't worried" about having a seizure when caring for a young child or infant, explaining "it isn't a question of a person having a disorder like epilepsy that is problematic. It's what they do about it." In her opinion, the key inquiry is "whether they have a concept of its consequences potentially for other people and whether they are mindful about doing the kind of planning and problem solving that allows there to be order and structure that keeps a child safe in the situation." Dr. Jeffrey stated defendant's attitude was "not adequate in terms of an understanding of what can happen to a young child in an hour."
Based upon these observations, Dr. Jeffrey opined that Alex did not look to defendant as "a base for security, " and that defendant "had not formulated with [Alex] a parental attachment." Consequently, Dr. Jeffrey concluded "this is not a secure attachment between [Alex] and [defendant] so there is not that increased likelihood if their relationship is severed that there would be serious and enduring harm." While Dr. Jeffrey acknowledged that potential harm exists when any relationship is severed, she concluded that severing Alex's relationship with defendant is "not likely to cause serious and enduring harm."
On the other hand, Dr. Jeffrey testified Alex displayed pleasure when his foster mother entered the room, "[h]e was physically affectionate to [her, ]" they sat together, he called her "mommy[, ]" she provided a snack, and she spoke with him appropriately. According to the doctor, the foster mother demonstrated "ordinary authoritative parenting" to the extent she organized the toys with him and discussed the toys as well as the eating process. She stated the foster mother "encouraged [Alex] to interact non-aggressively with the object[, ]" "used positive reinforcement to shape his behavior[, ]" and recited children's rhymes with him. Addressing the physical interaction she observed during the evaluation, Dr. Jeffrey testified Alex would spontaneously climb on his foster mother's lap and hug her.
Dr. Jeffrey opined "[Alex] is securely attached to his foster mother[, ]" meaning "he has based his personal security in his relationship with her, he responds to her parenting authority, he relies upon her. He is affectionate with her, and he demonstrated spontaneously an affectionate tie with the foster mother." Accordingly, Dr. Jeffrey opined that "[i]t is highly likely given their secure attachment . . . that there is a probability of his experiencing serious and enduring harm" if the relationship were severed, including problems with basic functioning, aggression, and sorrow or bereavement. Further, she opined it was "highly unlikely [defendant] has the ability to manage the kinds of things that happen when a child loses a secure attachment." On the other hand, the secure attachment to his foster mother would likely enable Alex "to heal from any harm experience[d]" from severing his relationship with defendant.
On cross-examination, defense counsel questioned Dr. Jeffrey's conclusion that defendant "may" not be reporting certain drug or alcohol problems, to which Dr. Jeffrey replied:
My understanding is that she was at one point positive for codeine and she was at one point positive for barbiturate. The explanation that she gave me was that she felt that because these were prescription drugs, . . . therefore that was not problematic. That's not necessarily what a drug and alcohol counselor would conclude, but that was her view of it.
Additionally, when asked what treatment and time period would enable defendant to safely parent Alex, Dr. Jeffrey opined that if defendant fully engaged in treatment and truly wanted to change, it was possible that within "a year-and-a-half" defendant might be capable of safe parenting, but only if she "fully engage[d.]" However, Dr. Jeffrey emphasized that Alex, was in a "critical period of attachment . . . [and] development[, ]" during which "[p]ermanency is very important to children[.]"
In her testimony, defendant stated she was, and had been, living at the Comfort Inn in Gloucester City for the two weeks preceding the trial and that she was receiving roughly $2000 per month in unearned income. She disputed the caseworker's testimony that she did not advise the Division of her address changes. She stated she advised the Division of her new address each time she moved, yet it continued to send mail to the wrong residence. She explained she missed substance abuse treatment intake appointments and parenting classes during November 2011 because of her pregnancy, which limited her ability to walk the eight blocks from her residence to the bus stop. She additionally testified she advised the Division she had a doctor's note supporting her limitation. The court admitted the note into evidence.
Defendant testified that she was looking into renting a two-bedroom trailer for $800, but was unsure how she would pay for it once she stopped receiving public assistance for Alex, child support for Carrie and alimony payments. She stated the support from her former spouse was slated to cease pursuant to the divorce decree sometime in 2012. She admitted that she had not filled out any paperwork with respect to housing. She explained she could not apply for housing directly through an apartment or trailer complex because she had an eviction on her record from less than two years ago, so "[m]ost private renters, or even most renters" would not rent to her. She also testified based upon her current income, she was not eligible for housing assistance through a homeless prevention program.
When questioned about her efforts to save money, defendant claimed she was trying to save money, but could not clearly identify how much she was currently spending on necessities per month. She stated she was unable to save while living with friends because she was spending most of her money on the household necessities like shampoo and toilet paper. She testified that her current expenses included Carrie's cell phone, cigarettes, personal products, and extras for the kids.
Upon completion of the testimonial stage of the trial, Judge Fratto placed his oral opinion on the record. The judge first noted defendant acknowledged that in light of her eviction history and poor credit history, it was "highly unlikely" she would be able to secure appropriate housing for herself and her children. He found Dr. Jeffrey's testimony "highly credible" and also uncontested. He accepted the doctor's opinion that "[defendant] has immature parenting judgment, adjustment mood dysregulation with personality problems, " resulting in "a decreased parenting capacity." The judge was satisfied this evidence demonstrated that defendant could not provide a minimal level of safe parenting for Alex and that this situation was unlikely to change.
Next, the judge found defendant was unable to engage Alex or impose limits on his activities and credited the testimony that Alex's foster mother was able to engage him and impose limits, provided positive reinforcement, and was Alex's psychological parent. He concluded that "to disrupt that relationship would result in serious and enduring harm to [Alex, ]" which defendant, given "her own deficits[, ] does not have the ability to ameliorate" if Alex's relationship with his foster mother were severed. The judge also accepted Dr. Jeffrey's opinion that it would take defendant "up to a year and a half . . . of intense services, even if [defendant] was fully engaged[, ]" to attain the skills necessary to safely parent. Moreover, he found it unlikely defendant would become fully engaged in services, "and [Alex] cannot wait for something that is not likely to happen."
Based upon these findings, the judge concluded:
[Alex]'s safety, health, and development, particularly his health and development, ha[ve] been and will continue to be endangered by the relationship [with] the defendant, that [defendant] is unable because of her psychological make up [sic] and the findings of Dr. Jeffrey to eliminate the harm facing [Alex]. She is unable to provide a safe and stable home for [Alex]. She's unable to provide such a home even for herself. Her housing situation is almost nomadic. She has not developed any plan to deal with her unfortunate physical problems were they to occur while [Alex] was in her care. I find that a delay in permanent placement will contribute to the harm that faces this child and separating [Alex] from his resource family would cause serious and enduring emotional and psychological harm to him.
Judge Fratto found the Division made reasonable efforts to assist defendant in addressing her deficiencies including arranging multiple referrals for parenting skills and substance abuse evaluations, and noted that defendant "didn't do what was offered." The judge was satisfied the Division, after investigating potential care providers recommended by defendant, was unable to find a friend or family member willing to care for Alex.
Finally, Judge Fratto concluded that terminating defendant's parental rights would not do more harm than good. Consequently, he determined termination of defendant's parental rights was in Alex's best interest. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT'S FINDING THAT APPELLANT WAS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR [ALEX] AND THE DELAY IN PERMANENT PLACEMENT WILL ADD TO [ALEX'S] HARM WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
THE TRIAL COURT'S FINDING THAT [ALEX'S] WELFARE HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
THE TRIAL COURT FAILED TO DETERMINE BY CLEAR AND CONVINCING EVIDENCE WHETHER IT WAS REASONABLY FORSEEABLE [SIC] THAT [DEFENDANT] CAN CEASE TO INFLICT HARM UPON [ALEX].
THE TRIAL COURT'S HOLDING THAT THE TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD WAS NOT BASED UPON CLEAR AND CONVINCING EVIDENCE.
The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.
"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J.Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), vacated on other grounds, 163 N.J. 158 (2000). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J.Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(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 [D]ivision 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
1(4)Termination of parental rights will not do more harm than good.
"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258 (App. Div. 2005) (citing
K.H.O., supra , 161 N.J. at 347). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case."
K.H.O., supra , 161 N.J. at 348 (internal quotation marks omitted).
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters, " we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J.Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (1988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the Appellate Court unless clearly lacking in reasonable support."
F.M., supra , 375 N.J.Super. at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M. 189 N.J. 261, 279 (2007). Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that Alex's best interests required termination of defendant's parental rights.
"The first two prongs of the best interests of the child standard relate to the "finding of harm arising out of the parental relationship."
D.M.H., supra, 161 N.J. at 378. These prongs require dual showings: (1) "[t]he child's health and development have been or will continue to be endangered by the parental relationship;" and (2) "[t]he 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." N.J.S.A. 30:4C-15.1(a)(1) and (2). "While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement . . . are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child."
D.M.H., supra, 161 N.J. at 379.
The first prong requires the Division to prove "that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting
K.H.O., supra , 161 N.J. at 352). The harm facing the child "need not be physical[;] . . . [s]erious and lasting emotional or psychological harm to the 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).
"To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'"
F.M., supra , 211 N.J. at 449 (quoting D.M.H., supra, 161 N.J. at 383). For instance, the failure of a parent to provide a "permanent, safe and stable home" engenders significant harm to a child.
D.M.H., supra, 161 N.J. at 383. See also M.M., supra, 189 N.J. at 293 (upholding trial court's termination of a father's parental rights where his wife, who had the intellectual functioning of a seven-year-old, created a dangerous and destabilizing environment).
Under the second prong,
[t]he State must show not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm. That inquiry 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.
[N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 175 (2010) (quoting
K.H.O., supra , 161 N.J. at 348-49).]
In performing this analysis, the court's task is not to determine whether the parents are unfit, or "whether they are the victims of social circumstances beyond their control"; the court's only task is to "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). In this regard, the second prong is satisfied by evidence of "parental dereliction and irresponsibility, " including "the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child."
K.H.O., supra , 161 N.J. at 353.
Defendant contends "the trial court had no basis to come to the stunning conclusion '[Alex's] safety, health, and development, particularly his health and development, had been and will continue to be endangered by the relationship to defendant.'" In particular, defendant questions how the court could credit the opinions expressed by Dr. Jeffrey who spent one hour evaluating the relationship between defendant and Alex. Defendant further contends the Division failed to prove the second prong because it was "totally unclear what harm she inflicted in the first instance. Thus, the trial court failed to address the issue of whether it was foreseeable that she might cease to cause such harm." We reject these contentions.
The record supports Judge Fratto's determination that defendant failed to provide Alex with a safe and stable home environment. Following the April 14, 2010 drug raid on her sister's home, during which 547 prescription narcotic pills, suspected marijuana, and $4200 in mixed United States currency were recovered, defendant continued to live in the home with Alex. Three months later, police conducted another drug raid, which again confirmed that non-prescription drugs were being kept in and/or sold out of the home. After each raid, defendant's sister's boyfriend was charged with drug offenses, yet defendant continued to reside in the home with Alex until her sister was ultimately evicted due to the raids.
After leaving her sister's home, defendant moved between various motels and friends' homes, never settling for more than a few months at a time, never once establishing stable residency. When questioned as to her expenses and why she was unable to save money to acquire stable housing, defendant testified she spent her money buying items for the households in which she was living, and spent nearly $300 of her $2000 to $3000 per month in disability and alimony income on cigarettes, a habit which her doctor had advised her to cease in order to mitigate her asthma symptoms. Additionally, Torres testified numerous referents reported defendant was spending her money on boyfriends and Atlantic City trips.
Defendant's pattern of failing to follow a plan for maintaining health and housing for both herself and Alex is indicative of the "poor judgment and immature parenting" style which Dr. Jeffrey identified in her trial testimony, and which the trial judge reasonably credited in concluding that the first prong was satisfied.
Further, based upon defendant's conduct the court did not err in crediting Dr. Jeffrey's opinion that defendant would require one to one and one-half years of intensive and engaged therapy in order to safely parent Alex. Given defendant's documented disinterest in treatment and failure to complete services in the two years leading up to the trial, there was ample evidence in the record from which Judge Fratto could reasonably conclude, by clear and convincing evidence, that defendant was unlikely to eliminate the harm which caused Alex's initial removal and that delay of permanent placement would add to Alex's harm. See
A.W., supra , 103 N.J. at 607 (stating the court's only task under prong two is to "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care").
"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 [with a foster parent]." N.J. Div. of Youth & Family Servs v. L.J.D., 428 N.J.Super. 451, 487-88 (App. Div. 2012) (quoting N.J.S.A. 30:4C-15.1(a)(3)). Reasonable efforts depend upon the facts and circumstances of each case,
D.M.H., supra, 161 N.J. at 390, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 441 (App. Div. 2009) (citations and internal quotation marks omitted). The specific services designed 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).
"When considering what efforts the Division has expended to assist the parent to correct the circumstances which led to the child's placement, the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 434-35 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1(a)(3)), certif. denied, 171 N.J. 44 (2002). "This includes relative placements for the child that would obviate the need for termination of parental rights and adoption."
L.J.D., supra , 428 N.J.Super. at 488-89.
However, the reasonableness of the Division's efforts is not measured by successful outcomes, rather, such efforts are to be "assessed . . . in light of all the circumstances of a given case."
D.M.H., supra, 161 N.J. at 393. One consideration is whether the parent actively participated in the reunification effort. Id. at 390. Consequently, the fact that the Division's efforts ultimately failed "does not foreclose a finding that [it] met its statutory burden to try to reunify the [children] with the [parents]." 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). Moreover, "[e]ven if the Division had been deficient in the services offered[, ]" reversal is only warranted where the child's best interests would be served by reunification. Id. at 621.
Defendant contends "[t]hough her attendance record regarding parenting and drug counseling was not perfect, [she] offered reasonable explanations for her absences, such as her pregnancy and changes of mailing address." Additionally, she urges that the trial court erroneously placed the burden on her to demonstrate she was able to provide Alex with a safe and stable home. The record, however, lends no support to defendant's arguments.
Torres testified that each time the Division was notified of an address change, it referred defendant to convenient providers, provided bus passes, and updated her contact information. However, the caseworker explained that because defendant kept moving, defendant repeatedly failed to receive subsequent appointment and intake notifications. The fact that defendant may have failed to receive these notifications was not due to a lack of reasonable efforts by the Division. Rather, defendant's failure to receive notices was a direct consequence of defendant's inability to secure stable housing. Accordingly, the fact that the Division's efforts proved ineffective in no way detracted from the reasonableness of its efforts. See F.H., supra, 389 N.J.Super. at 620 (failure of services "does not foreclose a finding that [the Division] met its statutory burden to try to reunify the [child] with the [parent]" (citation omitted)).
Additionally, Torres testified the Division attempted to place Alex with a family friend. While the friend was willing to accept Alex on a short-term basis, she indicated she would have to think about accepting Alex on a long-term basis. She told the Division she would get back to it but never did. The Division also asked Carrie's father whether he would consider having Alex placed with him since he already had custody of Carrie, but he declined.
Finally, defendant has presented no evidence from the record that supports her assertion the trial court shifted the burden of proof to her to satisfy the third prong. Thus, this contention is nothing more than a bald assertion which we reject. See State v. Cummings, 321 N.J.Super. 154, 170 (App. Div. 1999) (finding proponent "must do more than make bald assertions").
Turning to the fourth prong, defendant argues "not a scintilla of evidence was presented to show that the termination of [defendant]'s parental rights will not harm [Alex]." Additionally, she contends Dr. Jeffrey's findings and conclusions fall short of meeting the Division's burden. We find no merit to these contentions.
The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). The Division does not fail to satisfy the fourth prong because it fails to demonstrate that no harm will befall a child separated from his or her parent.
K.H.O., supra , 16 N.J.Super. at 355. The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The ultimate determination to be made "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents."
K.H.O., supra , 161 N.J. at 355.
Dr. Jeffrey testified that "[Alex] is securely attached to his foster mother[, ]" meaning "[Alex] has based his personal security in his relationship with her, he responds to her parenting authority, he relies upon her." Consequently, Dr. Jeffrey opined "[i]t is highly likely given their secure attachment . . . that there is a probability of his experiencing serious and enduring harm" if the relationship were severed, including problems with basic functioning, aggression, and sorrow or bereavement. Judge Frat to credited this testimony and the judge's credibility determination is entitled to our deference. A.R.G., supra, 361 N.J.Super. at 78.