OF YOUTH AND FAMILY SERVICES v. C.P. IN THE MATTER OF THE GUARDIANSHIP OF A.L.P., C.L.P. AND D.P Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2954-09T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant.

____________________________________
 

IN THE MATTER OF THE GUARDIANSHIP

OF A.L.P., C.L.P. AND D.P.,

Minors.

____________________________________

November 14, 2011

Submitted October 24, 2011 - Decided

Before Judges Sabatino, Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-114-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura M. Kalik, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly L. Johnston, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors(Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant C.P. appeals from a January 14, 2010 order terminating her parental rights to three of her biological children, now ages seven, five, and four.1 C.P. argues that she was denied effective assistance of counsel, and that the judge erred by terminating her rights because the New Jersey Division of Youth and Family Services (the Division) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.

Although defendant has been known to the Division since she was a child due to allegations that her father abused her sexually, the three referrals that led to the removal of the children occurred between November 2007 and January 2008. At the time, defendant was nineteen years old, living with her parents, Donald's father, and the three children. During a visit from a Division caseworker, defendant's father explained that it was a burden having his daughter's family living with him and that her part-time job did not cover the bills.

In November 2007, the first caller stated that Donald was born prematurely and defendant did not receive prenatal care. Three weeks later, the second caller stated that Donald had been admitted to the hospital for vomiting and poor weight gain. He was diagnosed with failure to thrive and remained for three days in the hospital, where defendant visited him once. The Division then learned that Ana and Charles were overdue for their vaccinations and well visits, and that defendant had been watering down Charles' milk.

The Division opened a case and provided services. Defendant and Donald's father entered into a case plan with the Division, agreed to take Ana and Charles to the doctor, attend psychological and psychiatric evaluations, and allow in-home services.

In January 2008, the Division received the third referral. The caller stated that Donald had been admitted to the hospital because of a bluish discoloration in his face. Defendant waited six hours while Donald was in critical condition before bringing him to the hospital. The Division learned that Donald had suffered a bilateral skull fracture, multiple rib fractures, pulmonary contusions, and other injuries. Although neither parent initially accepted responsibility, Donald's father admitted that he was "heavy handed" with Donald, and defendant claimed that she caused the skull fracture by accident five days before Donald's hospitalization, but did not seek medical treatment.

In January 2008, the police arrested defendant and Donald's father, and charged them with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). They were incarcerated and the criminal court entered an order of no contact between the parents and Donald. Defendant was released on bail, but Donald's father remained in jail. One year later they pled guilty to the charges.2

In January 2008, the court approved the removal of the children from defendant's care due to Donald's hospitalizations and critical condition. After a one-month hospitalization, the Division placed Donald at Marlton Weisman Rehabilitation, where he remained for several weeks. Due to his medically fragile state, the Division then placed Donald with a special home service provider. The Division placed Ana and Charles together in a foster home.

All three children have special needs: Ana has been diagnosed with Tourette's Syndrome, behavioral problems, and speech and language delays; Charles has been diagnosed with static encephalopathy, expressive language delays, and behavioral problems; and Donald has been diagnosed with reflux and developmental delays, and has difficulty walking due to his fractures.

In April 2008, the judge conducted a fact-finding trial and concluded by clear and convincing evidence that defendant and Donald's father had abused and neglected the children. The judge ordered that the parents undergo mental health evaluations, submit to random urine screens, and attend counseling and parenting skills classes.

On January 25, 2008, Dr. Kristen Cirelli, a court-appointed psychologist, evaluated defendant to assist the Division to determine what services to provide. The doctor found:

It is a significant concern that [Donald] has a skull fracture and eight fractured ribs and that [defendant] did not report ever noticing her baby in pain or discomfort[.] It is also very concerning that she reports she has seen [Donald's father] "hurt the baby plenty of times" and did not take any apparent steps to intervene or report him. An additional concern is that she does not present as upset about the current set of circumstances and in fact presents as emotionally unaffected by it. At this time she does not appear to have the ability to care for or protect her son.

Dr. Cirelli recommended that defendant undergo individual counseling, parenting classes, and a psychiatric evaluation. Following this initial evaluation and report, Dr. Cirelli held individual counseling sessions with defendant between October 20, 2008 and October 6, 2009. During the course of counseling, Dr. Cirelli issued three psychological therapy status reports3 containing defendant's inconsistent and misleading statements about Donald's injuries. In her final report, dated October 6, 2009, Dr. Cirelli opined that defendant was a fit parent.

On July 1, 2008, Dr. Leon Rosenberg, a forensic psychiatrist, also evaluated defendant for the Division. Defendant told the doctor that she observed Donald's father shake Donald, but that she did not realize the severity of that conduct. She reported needing no help. Dr. Rosenberg diagnosed her with attention deficit hyperactivity disorder, and agreed with Dr. Cirelli's recommendations for ongoing therapy, stating that "[h]opefully the results of treatment [would allow defendant to] function at . . . a level commensurate with that required for good parenting."

Defendant received parenting skills training from the Center for Family Services Parent Resource Center (Family Services) from March to August 2008. Robin's Nest Family Ties (Family Ties) facilitated therapeutic visitation between defendant and Ana and Charles. Defendant completed her parenting classes, but had difficulty setting boundaries for her children during the two-hour per week visitations. Family Ties reduced the visitation sessions to one hour due to defendant's inability to engage the children. The facilitator stated that defendant "didn't seem to care when her visits were decreased" and had only "made minimal progress with the Family Ties service plan goals." In October 2008, Family Ties stopped providing therapeutic visitation, and defendant then participated in supervised visitation with Ana and Charles.

In January 2009, the judge approved a plan of termination of parental rights followed by adoption. In April 2009, the Division filed its complaint for guardianship. Defendant remained unemployed and without housing. The Division continued to provide services to the parents and the children.

In May 2009, Dr. Kenneth Goldberg, a forensic psychologist, evaluated defendant at her counsel's request, and conducted a bonding evaluation between defendant and Ana. He concluded that defendant did not have the personality to hurt her children, and recommended that the children return to their mother's care. He did not observe defendant with Charles.

In July 2009, Dr. Linda Jeffrey, a forensic psychologist, evaluated defendant at the Division's request and performed a bonding evaluation between defendant and Ana and Charles.4 Dr. Jeffrey diagnosed defendant with generalized anxiety disorder, histrionic personality disorder with paranoid masochistic personality features. She opined that defendant is unable to establish a stable environment for parenting. She concluded that defendant has "significant emotional, personality and adjustment problems that seriously decrease her parenting capacity to provide a minimum level of safe parenting for her children." Dr. Jeffrey opined that Ana and Charles would be at risk of harm if returned to defendant's care.

In September 2009, Dr. Jeffrey conducted a bonding evaluation of Donald and his foster parents who wished to adopt. At the time of the evaluation, Donald had lived with his foster parents for three and one-half months. Dr. Jeffrey explained that the foster parents showed "knowledge and understanding of [Donald's] developmental needs and the interventions necessary to address [his] problems." She opined that Donald displayed a secure attachment to his foster parents and should remain in their care.

Judge Octavia Melendez conducted a four-day trial on nonconsecutive dates in October 2009. The Division produced two witnesses, an adoption supervisor and Dr. Jeffrey. Dr. Goldberg testified on behalf of defendant. On January 14, 2010, Judge Melendez issued an oral and written opinion and terminated defendant's parental rights to all three children. The judge found the Division witnesses to be reliable and credible, and concluded that Dr. Goldberg s contradictory testimony was not credible. Defendant did not testify. She now appeals the judgment terminating her parental rights.

Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings receive deference unless "so wide of the mark that the judge was clearly mistaken"). Here, the judge s findings are supported by adequate, substantial and credible evidence.

In rendering her decision, Judge Melendez correctly employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(1) The child's safety, health or develop-ment 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. . . .;

(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.

[See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).]

Judge Melendez determined that there was clear and convincing evidence to meet the first prong because defendant admitted to second-degree child endangerment, failed to receive any prenatal care for any of her children, ignored the harm that Donald's father inflicted on Donald, and suffered from a multitude of emotional problems and personality disorders. Donald experienced poor weight gain and failed to thrive because she fed him watered down milk as an infant. He was hospitalized twice and sustained significant physical injuries. Ana and Charles missed doctor visits and did not receive timely vaccinations.

The judge also found that there was clear and convincing evidence to meet the second prong. Dr. Jeffrey testified that defendant was incapable of fulfilling the minimum needs of her children, appropriately managing their behavior, and protecting them from future harm. Defendant has been unable to find independent housing or maintain steady employment during the two years between the children's removal and Judge Melendez's decision. Defendant was unemployed at the time of trial and had not proposed a permanent plan for her children. The judge concluded that waiting any longer for defendant to show that she could care for her children would "prove detrimental to [Ana and Charles's] development." She found that Donald's foster parents are meeting Donald's needs and any further delay of permanent placement will add to the harm.5

As for the third prong, Judge Melendez found that the Division had made reasonable efforts to provide services to help defendant correct the circumstances that led to the children's placement outside the home. The judge stated that the Division "offered [defendant] a plethora of services geared toward reunification." Defendant received psychological and psychiatric evaluations, individual therapy, parenting skills classes, visitation, and bonding evaluations. The Division considered alternatives to termination of parental rights, ruled out placement of the children with relatives, and has begun a select home adoption process for Ana and Charles.

In finding that the fourth prong was also met, Judge Melendez concluded that termination of parental rights would not do more harm than good. Defendant has not seen Donald since the Division removed him from her care. Donald has a secure relationship with his current foster parents. Dr. Jeffrey testified that Ana and Charles have not bonded with defendant and would not suffer any harm from the termination of defendant's parental rights. We agree with Judge Melendez that there was a need to secure stability without undue delay. The children's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong. In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999).

Defendant contends that in a separate action after her parental rights were terminated, the judge granted custody of Irene, the fourth child, to Irene's father, and allowed defendant and the father to arrange parenting time between themselves. Defendant argues that her permitted parenting time with Irene supports a reversal, or a remand for further proceedings, on the second and fourth prongs. We disagree.

Defendant relies on New Jersey Division of Youth & Family Services v. T.S., 417 N.J. Super. 228, 243-50 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). There, the court found there were significant post-trial circumstances regarding the minor's pre-adoptive placement and the birth mother's rehabilitation efforts. Id. at 243. For example, the mother filed a certification in support of her request for visitation pending appeal in which she explained how she had remained sober, eliminated the most significant harm requiring her child's removal, and remained in contact with her child using cell phones and the Internet. Id. at 246. Moreover, the child, who was twelve years old, had not secured a permanent placement and had newly expressed a desire to see her mother. Id. at 247. Citing the child's preadolescent age, her immediate need for "parental nurturing, social guidance and stability," and the effects of past trauma, we concluded that there was only a narrow window of opportunity for success through reunification or adoption, and remanded to determine whether the Division met its burden in light of the additional facts. Id. at 248-50.

Defendant's reliance on T.S. is misplaced, as this case is factually distinguishable. The children here are younger, the bonds with their mother are nonexistent or insecure, and there is no evidence to suggest that defendant has overcome identified parental shortcomings or eliminated the harm requiring the removal of her three oldest children.

Defendant also relies on a recent unpublished decision6 to bolster her argument that we should reverse the termination of her parental rights or, alternatively, remand in light of the trial judge's decision to allow her parenting time with Irene. Unlike that case, the trial judge did not return physical custody of Irene to defendant. Rather, according to defendant, the judge allowed her to share parenting time.

Finally, we reject defendant's contention that her counsel provided ineffective assistance because he did not name Dr. Cirelli as a witness. Because of this omission, she argues that the court refused to allow Dr. Cirelli to rebut Dr. Jeffrey's testimony. Thus, she contends that counsel's failure to identify Dr. Cirelli as a witness "fell below the standard of care, prejudiced her defense, and significantly contributed to the trial court's decision to terminate [her] parental rights[.]"

A parent who is subject to a parental termination action has the right to effective assistance of counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). In B.R., the Court relied on the two-part test announced in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 674, 692 (1984), and adopted in State v. Fritz, 105 N.J. 42, 58 (1987), to assess an ineffective assistance claim. Id. at 307-09; see N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 609 (App. Div. 2011).

To succeed, the parent must first demonstrate that "(1) counsel's performance [was] objectively deficient i.e., it [fell] outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" B.R., supra, 192 N.J. at 307 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).

Because of a child's need for permanency, claims of ineffective assistance of counsel in parental termination cases must be raised on direct appeal. B.R., supra, 192 N.J. at 311; R. 2:10-6. The appeal must provide "the factual basis for asserting that trial counsel's performance was deficient and explain why the result would have been different had the lawyer's performance not been deficient." R. 2:10-6. Where a party claims the failure to produce an expert or lay witness, the appellant must supply a certification from the witness regarding the substance of the omitted evidence and its relevance. B.R., supra, 192 N.J. at 311.

In cases where the appellate court accepts as true the representations about the lawyer's shortcomings, but determines, on the basis of the full record, that the shortcomings did not change the outcome, no further action is taken. Ibid. If, however, a genuine issue of material fact must be resolved, the appellate court should remand the matter for an accelerated hearing and resolution by the trial judge before rendering a full opinion on appeal. Ibid.; R. 2:9-1(c).

At the September 2009 pretrial conference, defendant's counsel advised the court that Dr. Goldberg was his only witness. When reminded by the court that all witnesses must be known to the parties at that time, counsel stated that he understood, but did not intend to call anyone else except possibly his client and her family.

After Dr. Jeffrey testified on October 6, 2009, defendant's counsel asked the judge for permission to call Dr. Cirelli as a witness. He argued that Dr. Jeffrey's testimony was based on Dr. Cirelli's latest report, which he had just received that day. The court noted that defense counsel knew the State was not planning to call Dr. Cirelli to testify, that he was "free to call" her as a defense witness, and that he did not add her name to his list of witnesses even though he had received her earlier reports.

Defendant has failed to demonstrate a prima facie case of ineffective assistance of counsel. She has not provided a certification from Dr. Cirelli relating to the substance of the omitted testimony, along with arguments regarding its relevance. B.R., supra, 192 N.J. at 311; see N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010) (holding a defendant's contention of ineffective assistance due to the failure to call witnesses was unsupported because he failed to provide certifications). Even if an expert report would suffice without certification, Dr. Cirelli's report (or testimony tracking the report) would not have changed the outcome. Thus, defendant has failed to meet prong one of Strickland.

Furthermore, even if error occurred, it was harmless. R. 2:10-2. Judge Melendez considered the therapy status reports from Dr. Cirelli, including the October 6, 2009 report. The judge stated that "[u]nlike the [Family Ties] program which conducted therapy sessions with [defendant] and her children, and unlike the bonding evaluation conducted by Dr. Jeffrey, Dr. Cirelli never observed [defendant] attend to or care for her children." Therefore, defendant has not satisfied the second prong of Strickland. B.R., supra, 192 N.J. at 307.

For these reasons and others more fully explained in Judge Melendez's well-written decision dated January 14, 2010, with which we substantially agree, we affirm the judgment under review.

A

1 Her daughter A.L.P. was born in February 2004; her son C.L.P. in August 2006; and her son D.P. in October 2007. We have provided the following fictitious names for the children: Ana (A.L.P.), Charles (C.L.P.), and Donald (D.P.). On September 21, 2009, Donald's father voluntarily surrendered his parental rights to Donald. None of the fathers are involved in this appeal.

2 On January 15, 2010, Donald's father received a seven-year sentence in prison, and on March 5, 2010, the court imposed a three-year probationary term on defendant conditioned on 364 days of house arrest.

3 Dr. Cirelli issued the status reports on January 2, 2009, February 17, 2009, and October 6, 2009.

4 In the same month, defendant gave birth to another child (whom we call Irene) who is not involved in this appeal. The Division removed the fourth child and placed her in a foster home.

5 The judge rejected Dr. Cirelli's opinion that defendant would make a fit parent because Dr. Cirelli did not use empirical data or observe the children.

6 Rule 1:36-3.