December 9, 2013
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
C.T.J., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.E.M., K.D.M., JR., C.N.S.M., T.T.J., and Z.M.G., minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-136-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Swift, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, T.T.J. and Z.M.G. (Catherine Davila, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors, K.E.M., K.D.M., Jr., and C.N.S.M. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
Before Judges Lihotz, Maven and Hoffman.
Defendant C.T.J. appeals from the Family Part order terminating her parental rights to five children and granting guardianship to the Division of Child Protection and Permanency (Division). On appeal, defendant argues the evidence was insufficient to satisfy the statutory requirements of N.J.S.A. 30:4C-15.1(a). The Law Guardian for the two youngest children supported termination before the trial court and, on appeal, joins the Division in urging us to affirm. The Law Guardian for the three older children objects to the court's determination, urging reversal and reunification with C.T.J.
Based on our review of the record and applicable law, we conclude the Division proved by clear and convincing evidence the requisite statutory factors required to terminate defendant's parental rights. Accordingly, we affirm for substantially the reasons expressed by Judge Ronald D. Wigler in his thorough and well reasoned forty-nine page written opinion of March 19, 2013.
Defendant is the mother of thirteen children. The five youngest children are the subject of this litigation, namely, K.E.M. born in 2002; K.D.M. born in 2004; C.N.S.M. (C.M.) born in 2005; T.T.J. (T.J.) born in 2009; and Z.M.G. (Z.G.) born in 2011.
Defendant has an extensive history with the Division beginning in February 1994. The Division had received numerous referrals involving the health and welfare of the children resulting in findings of substantiated neglect,  and eventually the removal of the eight older children. The Division closed its file on the family in 2008.
On October 13, 2010, the Division received a referral from Newark Beth Israel Hospital indicating that defendant, then fourteen weeks pregnant with Z.G., had arrived at the hospital for pre-natal care and a food referral. Defendant appeared "disheveled, smelled of body odor, and smelled of cigarettes." The referral was coded as "related information" and was further investigated.
On November 9, 2010, the Division received another referral that resulted in the guardianship matter underlying this appeal. An anonymous caller reported that defendant and her four children, K.E.M., K.D.M., C.M., and T.J., were living in the first floor apartment of a two-family home with no heat or electricity. According to the reporter, defendant's maternal great aunt lived on the second floor of the building, but she generally did not allow defendant and her children upstairs at night. The reporter also expressed concern over the fact that none of the children had been attending school at the time. That same day, the Division began its investigation in which it interviewed, among others, defendant, her children, defendant's maternal great aunt, and the family's caseworker. The Division confirmed that the children had been sleeping in the first floor apartment without electricity or heat. Defendant's maternal great aunt stated that she did not want defendant and her children in the upstairs apartment "because she was moving and the space was limited."
None of the children could recall the last time they attended school. The investigator spoke with an attendance counselor at the local school who reported that neither C.M. nor K.D.M. had ever been registered with the Newark Board of Education, nor were they attending an out-of-district school. The counselor further stated that K.E.M. had not attended school since the start of the 2010 school year and was not currently enrolled in the Newark school system.
With respect to defendant, the Division described her as "deceitful, belligerent, and [seemingly] mentally challeng[ed]." Once confronted with her children's statements, defendant "became humble" and stated that she loved her children, but that "she did not have [anywhere] to go." Defendant explained that before moving into the apartment, she and the children had been living with defendant's mother, but had been asked to leave because defendant's mother "did not want any problems with the landlord." Defendant further stated that she planned to enroll the children in school, but she could not provide any additional details as to her plan.
The Division substantiated defendant for educational and environmental neglect and created a safety plan with defendant's great aunt in which defendant and the children would temporarily sleep in her upstairs apartment. The next day, the Division conducted a follow-up visit, in which the Division learned that the great aunt had been heating her apartment with a stove. The caseworker asked defendant if there were other relatives with whom the children could stay, but all of the suggested relatives were excluded because their homes were not large enough to accommodate a family of five. The Division, therefore, rejected the original safety plan in light of the conditions of the great aunt's apartment, and executed an emergency Dodd removal of the children.
On November 15, 2010, a Family Part judge granted the Division custody of all four children. The Division placed K.E.M. and T.J. in a Division-approved resource home with Mrs. S., with whom they live today. K.D.M. and C.M. were placed in a Division-approved resource home with Mrs. M. The two young boys, however, were later transferred to Laurie Haven, a residential facility, because of severe behavioral issues, which included putting glass in Mrs. M.'s food, starting a fire in the home, and defecating and urinating in various rooms of the house.
On April 9, 2011, defendant gave birth to Z.G.; the hospital placed a hold on the infant because defendant was living in a homeless shelter. On April 14, 2011, the judge granted the Division custody of Z.G., who was subsequently placed in Mrs. S.'s care with his siblings, K.E.M. and T.J. Z.G. continues to live with Mrs. S., who has committed to adopting T.J. and Z.G., but not K.E.M.
After the children's removal, defendant moved into a one-bedroom apartment with R.G.,  her paramour. The Division provided a variety of services to defendant, R.G., and the children. Such services included parent and sibling visitation, financial assistance, psychological and psychiatric evaluations, substance abuse evaluations, furniture, clothing, counseling, bus cards, family team meetings, and educational services. Upon defendant's request, the Division also referred her to anger management and individual therapy at Babyland Family Services, Inc. (Babyland).
Defendant began supervised visitations at Babyland on February 4, 2011. Letters from Babyland indicate that defendant attended her weekly scheduled visitations in a relatively consistent manner, occasionally missing a visit or arriving late. The parties disagreed as to the quality of the visitations. The court later found that defendant was observed texting during the visits and "the Babyland worker often had to prompt [defendant] to interact with the children or to stop them from doing something dangerous or inappropriate, such as when [Z.G.] was climbing on furniture." On April 20, 2011, the Division further referred defendant to parenting skills classes at the WISE Women's Center, but defendant failed to comply with the referral.
In addition to family visitations, the Division also referred defendant to substance abuse evaluations in order to rule out potential drug abuse issues. Consistent with defendant's repeated denial of drug use, defendant successfully completed the evaluation on February 14, 2011, and the court found there was no indication that defendant was required to attend substance abuse treatment.
The Division provided defendant and her children with various psychological evaluations. On February 15, 2011, defendant attended her first evaluation with Minerva Gabriel, Ph.D. Following the evaluation, Dr. Gabriel recommended that defendant "complete her parenting course, undergo counseling, seek employment and housing, and look into furthering her education." Dr. Gabriel recommended that defendant be reassessed in six months.
On July 6 and July 14, 2011, Dr. Gabriel conducted a second evaluation of defendant. Based on a series of tests and collateral information, Dr. Gabriel found that defendant "has emotional problems that have a detrimental effect on her judgment and functioning in society." She further found that defendant was "irresponsible in that she continues to have children she cannot raise and the likelihood is that she will have more children which will ultimately end in [the Division's] custody." Following the evaluation, Dr. Gabriel recommended the following:
The test data, history and collateral information indicate that [defendant] does not have the ability to provide proper care for a child. She does not have the ability to assume the responsibilities needed to parent a child and therefore placing a child in her care will put the child at risk of physical and emotional harm.
I am recommending with the degree of psychological certainty that [defendant] . . . not get the custody of any of her children.
Thereafter, the Division proposed a permanency plan of termination of parental rights followed by adoption for all five children. On November 7, 2011, Judge Garry J. Furnari conducted a permanency hearing in which he approved the Division's plan with respect to K.E.M., K.D.M., and C.M. Judge Furnari found that it was not safe to return the children to defendant because, as Dr. Gabriel opined, defendant "does not have the ability to provide proper care for a child or the ability to assume the responsibilities needed to parent the child." Additionally, the judge concluded that the Division had provided reasonable efforts to finalize the permanency plan, including its provision of extensive services and an attempt to achieve reunification.
After performing a search for T.J.'s father, A.J., Judge Furnari similarly approved the Division's plan for termination of parental rights followed by adoption with respect to T.J. in a December 8, 2011 permanency hearing. Likewise, Judge Wigler approved the Division's plan as applied to Z.G. following a March 14, 2012 permanency hearing. On April 13, 2012, the Title 9 litigation ended when the Division filed an amended verified complaint for guardianship seeking to terminate defendant's parental rights to K.E.M., K.D.M., C.M., T.J., and Z.G.
The Division continued to provide services to defendant. The Division renewed defendant's referral to a parenting skills program at the WISE Women's Center; however, defendant did not comply with the referral. In February 2012, the Division attempted to schedule a family team meeting between defendant, R.G., and the children's foster parents, but defendant failed to attend. Finally, in March 2012, the Division referred defendant to a parenting skills course at the Newark Beth Israel Family Life Education Center (FLEC). The FLEC program conducted a psychological evaluation in which defendant "was evasive and placed the responsibility to provide for herself and her children on others, " having indicated that "no one" helped her. Defendant attended eleven out of eighteen FLEC sessions, failing to complete the program for reasons unknown. Defendant did, however, complete parenting skills and anger management courses at Babyland in December 2012.
On May 1 and July 18, 2012, Eric Kirschner, Ph.D. conducted psychological and bonding evaluations of defendant and R.G. on behalf of the Division. After clinical interviews and testing, he concluded defendant had limited insight into the impact her chronic neglect had on her children's welfare and well-being. In Dr. Kirschner's opinion, defendant was not fit to parent her children at that time and he had little confidence, given her past behavior, that she would become a minimally adequate caregiver for her children in the foreseeable future.
During the bonding evaluation, Dr. Kirschner observed that defendant was passive in her management of the children and appeared to have little control over their behavior. Defendant was often inattentive to the children and, in one instance, failed to avert one child from the hot water handle. Dr. Kirschner evaluated the children with defendant and concluded, except for K.D.M., that the children did not have a bond with defendant. He further opined that although K.D.M. had formed a bond, any impact caused from a separation from defendant could be mitigated by the presence of another bond or attachment relationship.
As for the bond between T.J., Z.G., and their foster parent, Dr. Kirschner concluded the children had a very strong bond with Mrs. S. whom the children called "mommy" and showed physical affection. Dr. Kirschner opined that the children formed a parent-child bond and attachment with Mrs. S. and appeared to perceive her as their "psychological parent."
The guardianship trial was held over a four-day period during which the Division offered testimony from Dr. Kirschner and Division caseworkers Emerald Irby and Theresa Dawson. While defendant did not testify, she offered the testimony of Jacquelyn Lake, the chief of staff of Babyland. Neither defendant nor the law guardians for the children presented expert witnesses.
Irby's testimony was consistent with Division records, as to defendant's history with the Division as well as the children's current placements and behavioral issues. Irby testified that all five children remained in foster care and that defendant visited the children biweekly.
With respect to Division services, Irby testified that defendant was referred to parenting skills courses three times, and confirmed that defendant completed the Babyland courses as of December 2012. Irby further noted that the Division had provided the family with extensive services, including psychological and psychiatric evaluations, Medicaid, individual therapy, and mentoring. The family also reportedly attended family team meetings, albeit inconsistently due to defendant's unavailability.
Irby noted the Division's plan for the adoption of defendant's five children. Irby reported that Mrs. S. had officially committed to the adoption of T.J. and Z.G., and that she would consider kinship legal guardianship for K.E.M. With respect to K.E.M., K.D.M., and C.M., Irby testified that the Division planned for Select Home Adoption in order to provide them with the "permanency that they need."
Division caseworker Dawson testified that the Select Home Adoption process is only available once "it's already been determined that the permanency plan is adoption." Once guardianship is granted, the Division is permitted to recruit nationally.
Dawson then testified as to the individual needs of K.E.M., K.D.M., and C.M., and their adoption prospects. According to Dawson, ten families in New Jersey had been identified as viable placements for K.E.M. should she become legally free. Dawson testified that C.M. also had a good chance of being placed in an adoptive home, despite his cognitive impairment, and reported that the Division had identified six families with whom C.M. could be placed if he were legally free. Dawson explained that because of K.D.M.'s positive attributes, the Division had identified six families with whom K.D.M. could be placed if legally free.
Defendant called Lake, who taught parenting skills courses in which defendant was enrolled. Lake testified that defendant successfully completed all ten mandatory group sessions and all three mandatory individual sessions. With respect to defendant's individual sessions, Lake testified that defendant talked to Lake about how she looked forward to regaining custody of her children and how "the parent education classes were helpful to her." Lake testified that the program did not have a means of evaluating the participants and that at most, it administered a pre- and post-program test to "get an idea of how the client has learned in the process."
Dr. Kirschner testified consistent with the findings and opinions set forth in his psychological and bonding evaluation reports. His opinion regarding defendant remained steadfast that even as to the older children, defendant lacked the necessary skills to provide a safe, permanent home.
After observing the witnesses' testimony, examining exhibits entered into evidence, and hearing counsel's arguments, Judge Wigler found the Division satisfied, by clear and convincing evidence, the four-prong test for termination of parental rights as codified in N.J.S.A. 30:4C-15.1. This appeal ensued.
Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "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). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child." Ibid. In A.W., supra, 103 N.J. at 604-11, the Supreme Court identified four factors to analyze when deciding whether the termination of parental rights is in a child's best interest. The Legislature codified these factors as follows:
(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
(4) Termination of parental rights will not do more harm than good.
These criteria are neither separate nor discrete. K.H.O., supra, 161 N.J. at 348. Rather, they "overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
Under the "best interests of the child" standard, parental rights may be terminated upon the Division establishing each enumerated factor by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.
The standards governing the termination of parental rights are strict, id. at 348, and the scope of our review is especially limited. Id. at 347; N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). A trial judge's factual findings should not "be disturbed unless 'they are so wholly insupportable as to result in a denial of justice, ' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).
Defendant contends the Division failed to prove that defendant endangered her children notwithstanding substantiations for insufficient housing, medical, and educational neglect. We disagree.
We address prongs one and two together, because "evidence that supports one informs and may support the other." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Under prong one of the best interests test, the Division must show that the alleged harm "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352; see also N.J.S.A. 30:4C-15.1(a)(1). With respect to this element of the best interest standard, the alleged injury need not be physical. "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Furthermore, a parent's "inability to take custody of and care for [her] child and to provide a safe and stable home at any time since the child's birth . . . demonstrates parental unfitness and constitutes a continuing harm to the child under [the second prong of] N.J.S.A. 30:4C-15.1(a)." K.H.O., supra, 161 N.J. at 353-54.
The record clearly supports the trial judge's findings that defendant has caused harm to the children by failing to provide adequate housing, attend to their medical well-being, and ensure their educational development. With regard to defendant's inability to secure adequate housing, the court credited Dr. Kirschner's testimony in which he opined that "[defendant's] failure to provide adequate housing was not a transient issue but a 'significant, ' 'recurring, ' and 'chronic' situation that supported his opinion of the removal of [defendant's] children as she lacked appreciation for and insight into the needs of her children." The judge also noted as significant defendant's continued failure to maintain the children's hygiene and schedule visits with a pediatrician for wellness care and immunizations.
The judge rejected defendant's attempts to minimize the harm caused by failing to enroll the children in school. Incredibly, defendant argued that there was no proof that "delay in enrollment or temporary absence from school created substantial harm to the children." The judge, citing K.H.O., supra, 161 N.J. at 352, aptly noted that deprivation of education "will likely have continuing deleterious effects on the child." See also N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 84 (App. Div. 2003) (wherein prong one was met because the defendant was unable to maintain stable housing and failed to see that the school-age children attended school).
As for ameliorating the harm, the record is clear that defendant complied with only some Division services, such as substance abuse and psychological evaluations. The court found that defendant "failed to provide a parenting plan for the children, has demonstrated a complete lack of interest in working to eliminate the harm facing her children, [and] failed to complete her parenting skills classes until she had been referred four times."
Moreover, the court rejected defendant's plan to involve R.G. in her parenting plan in light of his criminal history, drug abuse, and failure to comply with services. The court found that R.G. was unfit to parent. The court reasonably determined that defendant's living arrangement and relationship with R.G. could potentially harm the children. See M.M., supra, 189 N.J. at 278-79 (holding that a parent's association with third parties may be an appropriate consideration if those associations harm the child); N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J.Super. 582, 592 (App. Div. 1996) (holding that a mother's refusal to cease cohabitation with an abusive boyfriend was an appropriate factor in terminating parental rights).
It is apparent that defendant has been unable to provide for her children, and they have been harmed by her inability to do so. Sadly, there is no foreseeable likelihood that she will be able to change that situation. Thus, the first two elements of the termination statute have clearly been met.
We reject, as did the trial judge, defendant's contention that the Division has not offered her sufficient services and therefore has not met the third element. The third prong of the best interests test requires the Division to undertake reasonable efforts to reunite the family. D.M.H., supra, 161 N.J. at 386-87. "That prong of the standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Like considerations of parental fitness, an evaluation of the efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." D.M.H., supra, 161 N.J. at 390. Importantly, however, the Division's efforts need not be successful. Id. at 393.
Defendant's primary contention is that while the Division provided a host of services, including counseling and parenting skills courses, it did not provide housing assistance. Defendant argues that under N.J.S.A. 30:4C-15.1(c), the Division is required to provide services "remedying the circumstances and conditions that led to the placement of the child." Thus, because defendant's issues were directly linked to her housing instability, the Division should have helped her find a home or, at the very least, provide a security deposit for an apartment.
Dr. Kirschner recognized defendant's failure to secure housing as the primary contributing factor to the removal of all thirteen children, and determined this factor to be a "longstanding pattern . . . rather than a more acute short term type of situation." The court noted all of the services the Division provided to address defendant's needs. Judge Wigler found that "the record indicates that the Division has attempted to provide [defendant] with numerous services, including referrals for parenting skills, visitation, anger management, [family team meetings], psychological and bonding evaluations, EIP evaluation and therapy, bus cards, and resource payments." Judge Wigler noted that the Division provided such services despite Dr. Gabriel and Dr. Kirschner's determinations that services would have no effect on defendant's inability to parent her children. Relying on the expert testimony, the court reasonably determined there were no other services the Division could have offered which would have assisted defendant in caring for her children.
"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). Prong three "reasonable efforts" includes relative placements for the child that would obviate the need for termination of parental rights and adoption. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 488-89 (App. Div. 2012).
While defendant correctly asserted that family members were still being reviewed by the Division as placement options, the court reasoned that defendant's rights "to independently care for her children must be weighed against the rights of the children to have permanency with a secure and stable family who are equipped to handle a child's many needs." The court found Dawson's testimony indicated that the Division would be able to find adoptive homes for K.E.M., K.D.M., and C.M. Thus, the court found that foster home adoption for T.J. and Z.G., and Select Home Adoption for K.E.M., K.D.M., and C.M., were the best options in light of defendant's proven inability to care for her children. The court's finding with respect to prong three is supported by substantial, credible evidence.
The fourth prong of the best interests test requires a determination that termination of parental rights will not do more harm to the child than good. K.H.O., supra, 161 N.J. at 354-55 (citing N.J.S.A. 30:4C-15.1(a)(4)). "The question to be addressed . . . 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." Id. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363.
Here, the court found that due to defendant's "complete lack of judgment when it comes to parenting her children, " it would not do more harm than good if her parental rights were terminated as to all five children. With respect to the older children, the court credited Dr. Kirschner's opinion that K.E.M. and C.M. had no bond with defendant. And while K.D.M. had a slight bond with her, any harm he would suffer as a result of termination could be mitigated by the presence of an alternative relationship. The court further credited Dawson's testimony that the three older children "all have an excellent chance of being adopted through the Select Home process and even found four (4) families in total that would potentially adopt the three siblings together."
The Law Guardian for the three oldest children argues that they do not have good prospects for adoption based on their age and the boys' behavioral problems. The Law Guardian, however, failed to produce any expert testimony to support that claim or to rebut Dawson's testimony regarding Select Home Adoption. The record does not support the Law Guardian's contention that returning the children to defendant is the more viable alternative to termination and adoption. The bonding evaluation conducted by Dr. Kirschner belies that assertion.
We are convinced that defendant is unable to provide the stable and permanent home that these children so desperately need. We therefore conclude there is sufficient evidence in the record to support Judge Wigler's finding that termination of defendant's parental rights to these five children will not do more harm than good.