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New Jersey Division of Child Protection and Permanency v. O.J.

Superior Court of New Jersey, Appellate Division

November 25, 2013

O.J., Defendant-Appellant IN THE MATTER OF THE GUARDIANSHIP OF M.K.J., a minor


Submitted October 28, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-179-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the briefs).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.K.J. (Janet Fayter, Designated Counsel, on the brief).

Before Judges Yannotti, St. John and Leone.


O.J. appeals from an order entered by the Family Part on December 10, 2012, terminating her parental rights to the minor child, M.K.J. For the reasons that follow, we affirm.


The Division first became involved with O.J. when she was a minor, under the care of her mother, T.J., with whom she was living in Newark. In April 2008, a Division worker contacted T.J. and learned that T.J. was taking medications for depression. The worker noted that one of the medications was for schizophrenia. T.J. insisted, however, that she only suffered from depression.

In February 2009, a Division investigator contacted T.J. after receiving a report that at least one of her children was not attending school. O.J. spoke with the investigator. She was six months pregnant. O.J., who was born in June 1994, was fourteen years old at the time. She dropped out of school when she became pregnant. The investigator noted various unsafe conditions in the home, including soiled furniture, a dirty kitchen and general clutter.

In March 2009, a Division investigator contacted O.J. at the residence of her father, E.M., in Elizabeth. The investigator had O.J. and E.M. sign a case plan, which stated that O.J. would not reside with T.J. because her home was not safe. O.J. gave birth to M.K.J. in April 2009. In April 2009, the Division's investigator contacted O.J. at E.M.'s residence. O.J. was told that if she returned to T.J.'s home, the Division would remove the child from her care.

In December 2009, an investigator went to T.J.'s home after the Division received a report indicating that O.J., O.J.'s brother E.J. and M.K.J. were residing there. The investigator spoke with O.J. The investigator learned that O.J., E.J. and M.K.J. had been at T.J.'s residence since October 2009.

O.J. acknowledged that she was not receiving Women, Infants and Children (WIC) or Medicaid benefits for M.K.J. It appears that the benefits had not been transferred to the county in which O.J. was residing. A Division worker spoke with E.M. and he said he would retrieve the children from T.J.'s home and place them with their paternal grandmother, E.F., in Elizabeth. E.F. subsequently informed the Division that she would not be able to care for the children.

E.M. contacted the Division and said he did not know what to do with the children. He asked that the children be allowed to remain with T.J. until he found adequate housing. The Division agreed with E.M. that the children could be placed with T.J., provided O.J. and E.J. were enrolled in the Newark school system, and O.J. was taken to the welfare office so that her benefits could be transferred to the appropriate address. However, as of January 20, 2010, O.J. had not been enrolled in school and her benefits had not been transferred.

On February 4, 2010, the Division filed a complaint in the Family Part seeking care and supervision of M.K.J.[1] The court granted the application. Thereafter, the Division assisted O.J. to obtain benefits and worked with T.J. and E.M. to enroll O.J. in an appropriate school. In June 2010, the Division learned that O.J. had not yet returned to school. In October 2010, O.J. informed the Division she had been arrested. It appears that she had been charged with robbery. O.J. was placed under house arrest and required to wear an ankle bracelet.

As of November 2010, O.J. had not obtained Medicaid or WIC benefits for herself or M.K.J. She dropped out of a general educational development (GED) program in which she had enrolled to obtain a certification that she has high-school-level academic skills. O.J. said she would enroll again in January 2011.

On November 4, 2010, O.J. participated in a psychological evaluation conducted by Dr. Leslie Trott. In his report, Dr. Trott stated that O.J. had low-average intelligence and possibly a learning disorder. O.J. appeared to be suffering from underlying emotional distress. Dr. Trott noted that during the evaluation, O.J. had hardly mentioned M.K.J. and did not seem to understand her role as a parent. The doctor recommended individual and family therapy.

Thereafter, the Division sought legal custody of the child. The trial court entered an order on February 24, 2011, transferring legal custody of M.K.J. to the Division, and authorizing the Division to transfer physical custody to an approved resource home. O.J. was permitted weekly supervised visitation. Among other things, the court ordered O.J. to comply with services offered by the Division and the recommendations in the November 2010 psychological evaluation.

In March 2011, M.K.J. had a Comprehensive Health Evaluation, which noted that the child had displayed difficulty with her communication, gross motor and personal-social skills. In April 2011, M.J.K participated in an Early Intervention Assessment and was determined to be eligible for services due to her communication and cognitive delays.

In November 2011, M.K.J. was evaluated at the Children's Specialized Hospital and diagnosed with features of developmental delays, autistic spectrum disorder and mixed receptive or expressive language disorder. Early intervention therapies were recommended.

A Preschool Child Study Team evaluated M.K.J. in January 2012. The evaluator concluded that M.K.J. had a disabling condition, requiring special education services. Another evaluation at the Children's Specialized Hospital took place in February 2012, and physical therapy was recommended.

On February 16, 2012, the trial court conducted a permanency hearing and entered an order finding that the Division's plan for termination of O.J.'s parental rights, followed by adoption, was appropriate and acceptable. Among other things, the court noted that O.J. had been noncompliant with services. Thereafter, the Division filed its complaint for guardianship.

In March 2012, M.K.J. was diagnosed with expressive language disorder and referred for speech therapy. That month, the Division also referred O.J. and M.K.J. to a therapeutic visitation program. During the first two months of visitation, O.J. missed three visits, arrived twenty minutes late for another visit and attended three sessions. One of the missed sessions included a birthday celebration for M.K.J.

In March 2012, the Division also referred O.J. to a parenting skills program, which had weekly sessions for eight weeks. She missed two of the first three sessions. In April 2012, the Division learned that O.J. was not on the roster for the GED program she said she was attending. In June 2012, a Division worker met with T.J. at her home and was informed that O.J. had been in a fight with her brother the previous day and attempted to stab him.

In July 2012, Dr. Mark Singer conducted a psychological evaluation of O.J. He also conducted an evaluation of the bonds between O.J. and M.K.J. Among other things, Dr. Singer found that O.J. was not a viable parenting option for M.K.J. and was unlikely to become such an option in the foreseeable future. Dr. Singer noted that O.J. had developed a bond with M.K.J., but the child looked to her foster mother as her psychological parent.

Dr. Singer determined that, if the child's relationship with O.J. was severed, the child would suffer a loss, but the loss would not be significant or enduring, and the foster mother could mitigate the child's reaction to the loss. Dr. Singer additionally found that M.K.J. would suffer significant and enduring harm if removed from her foster parent, and O.J. would not be able to mitigate that harm.

The court conducted a trial in the matter in December 2012. The Division presented testimony from Dr. Singer and Latoya Nannan, one of its workers. O.J. did not testify, nor did she present any testimonial or documentary evidence. The court placed its findings on the record, concluding that the Division had established by clear and convincing evidence all of the criteria for termination of parental rights under N.J.S.A. 30:4C-15.1(a). The court entered an order dated December 10, 2012, terminating O.J.'s parental rights and placing M.K.J. in the guardianship of the Division. This appeal followed.


O.J. argues that the Division failed to present clear and convincing evidence establishing the statutory criteria for termination of parental rights. We disagree.

The Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the Division establishes, by clear and convincing evidence, the four criteria in N.J.S.A. 30:4C-15.1(a):

(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.

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 Family Part, because of that court's expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

O.J. argues that the Division failed to establish that the child's safety, health or development was endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). She contends that M.K.J. never lacked medical care while in her custody, and her disagreement with the Division as to whether M.K.J. had special needs is not a legally cognizable harm. We do not agree.

Although O.J. reported to the Division that M.K.J. had seen a pediatrician and T.J. said that she had maintained all of M.K.J.'s medical appointments, O.J. never provided the Division with documentation. Thus, the Division could not confirm that M.K.J. had, in fact, received appropriate medical care, as she claimed. In any event, the record shows that O.J. failed to arrange for Medicaid and WIC benefits for the child, thereby placing M.K.J. at risk that she would not have medical care when required.

Furthermore, it is undisputed that M.K.J. was diagnosed as autistic and O.J. told Dr. Singer she did not believe the diagnosis. The evidence established that O.J. had no appreciation of how to address the needs of a child with autism. Nannan testified that O.J. did not appear to be interested in learning how to raise an autistic child, even though Nannan had provided O.J. with literature on the subject and referred her to instructional programs.

When asked by Dr. Singer to describe what she knew of autism, O.J. said, "I don't know nothing [sic] really. I just know that you develop slow." Dr. Singer testified that because O.J. did not appreciate M.K.J.'s special needs, she would not notice signs of potential problems, thereby placing the child's development at risk of harm. Thus, the trial court did not err by viewing O.J.'s disagreement with the autism diagnosis as evidence of harm.

Moreover, while O.J.'s argument focuses on M.K.J.'s medical care and autism diagnosis, she fails to acknowledge the trial court's other factual findings on this part of the best interests test. The court took note of the lack of adequate housing, O.J.'s unemployment, and the risk of harm posed by the child's residing with T.J. in unsafe conditions. Thus, there is sufficient credible evidence in the record to support the court's finding that the M.K.J.'s safety, health or development was harmed by her relationship with O.J.

O.J. also argues that the trial court erred by finding that she was unwilling or unable to eliminate the harm she posed to M.K.J. N.J.S.A. 30:4C-15.1(a)(2). O.J. says she complied with the services offered "to the best of the ability of a reasonable teenage parent" in an adverse economic situation. She argues that she was "unnecessarily" restrained from enlisting T.J.'s help in caring for the child and did not get adequate support from her father. These arguments are unavailing.

Here, the trial court noted that O.J. failed to comply with services that the Division offered to help O.J. deal with her psychological problems and parenting deficiencies. The court pointed out that O.J. appeared to have no motivation or interest in the child, as shown by her failure to visit except when she "wants to." The court noted that Dr. Singer and Nannan both testified as to O.J.'s indifference to her parenting responsibilities.

O.J. argues, however, that there is no evidence she had any "psychological issues, " but that assertion is refuted by Dr. Trott's psychological evaluation, which noted O.J.'s underlying emotional distress and recommended therapy. O.J. also argues that the Division improperly precluded her from getting assistance from T.J. However, the record shows that T.J.'s home was unsafe for the child and O.J. failed to avail herself of services and benefits that would have allowed her to live independently.

O.J. further argues that the Division did not make reasonable efforts to address the circumstances that led to the child's removal from her care. N.J.S.A. 30:4C-15.1(a)(3). This argument also fails. The record shows that the Division provided O.J. with an array of services, including supervised and therapeutic visitation, parenting classes, individual therapy, family therapy, mentoring services and education referrals.

O.J. nevertheless argues that the Division placed too much reliance upon her parents to address her educational needs and to arrange for medical benefits. However, the record shows that the Division instructed O.J. on the manner in which she could submit her own application for Medicaid and WIC benefits. The record also shows that, while the Division told O.J. of the importance of education, she did not complete a GED program.

Finally, O.J. argues that the trial court erred by finding that termination of her parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). O.J.'s argument is entirely without merit.

Here, the trial court noted that Dr. Singer had testified "that while the child does know her mother and does have a relationship with her mother, " the harm resulting from the termination of that relationship "can be overcome by the stable, loving home that she's currently living in" and by the child's relationship with her foster mother.

The court also noted that M.K.J. needs a final, permanent and stable relationship. The court pointed out that, at the time of the trial, M.K.J. had been in her foster placement for almost two years. The court said that the foster parent had provided M.K.J. with a stable home.

Dr. Singer's report indicated that M.K.J. would suffer significant and enduring harm if she is removed from her foster parent, and O.J. would not be able to ameliorate the harm. The doctor testified that, while M.K.J. would suffer some harm if her relationship with O.J. was severed, the foster parent could address the harm and it would not be significant or enduring.

O.J. contends that the trial court erred by placing greater value on visitation attendance than on the quality of visits. We do not agree. Dr. Singer testified concerning the importance of a parent maintaining a consistent presence. O.J. did not present any expert testimony to counter Dr. Singer's views. The court did not err by considering consistent visitation to be an important focus in its analysis.

O.J. also argues that the court should have given little weight to Dr. Singer's analysis of her bonds with M.K.J. She contends that Dr. Singer's opinion on this issue is inconsistent with the records of her visits with the child. O.J.'s assertion is without merit. Dr. Singer's opinion was based on his own observations.

Moreover, we must defer to the trial court's assessment of the expert testimony and the factual findings based on that testimony. In re Guardianship of DMH, 161 N.J. 365, 382 (1999). The trial court "is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded [to the] testimony." Ibid. (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).

We have considered O.J.'s other contentions and find them to be of insufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).


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