NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.M. and J.L.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5836-09T2

A-5837-09T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

W.M. and J.L.R.,

Defendants-Appellants.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.L.R., JR., and D.A.R.,

Minors.

_______________________________________

July 6, 2011

 

Submitted June 7, 2011 Decided

 

Before Judges Parrillo, Yannotti and Skillman.

 

 

 

 

 

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-82-09.

 

Yvonne Smith Segars, Public Defender, attorney for appellant W.M. (Catherine Reid, Designated Counsel, on the brief).

 

Yvonne Smith Segars, Public Defender, attorney for appellant J.L.R. (Justin J. Walker, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors J.L.R., Jr., and D.A.R. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendants W.M. and J.L.R. appeal from an order entered by the Family Part on June 22, 2010, terminating their parental rights to their two minor children, J.L.R., Jr., and D.A.R., and awarding guardianship of the children to plaintiff, the Division of Youth and Family Services (Division). For the reasons that follow, we affirm.

I.

The Division first became involved with the family in July 2007, when it received a referral from the Middlesex County Probation Department indicating that W.M. and J.L.R. had tested positive for cocaine while on probation as a result of criminal convictions for cashing fraudulent checks. W.M. is the biological mother of J.L.R., Jr., who was born on May 26, 2005, and D.A.R., who was born on May 5, 2006. J.L.R. is the biological father of these children. W.M. also has an older child, C.R., who is fifteen years old. C.R. was residing with O.M., her biological father.

After investigating the referral regarding W.M. and J.L.R., the Division removed J.L.R., Jr., and D.A.R. from the home and placed them in the care of their uncle, A.C. In August 2007, A.C. requested that the children be removed from his care because of a dispute with W.M. and J.L.R. In September 2007, J.L.R., Jr., and D.A.R. were placed with L.K.

On October 23, 2007, J.L.R. was charged with violating probation because he failed to report to his probation officer and tested positive for cocaine on July 20, August 8, and August 13, 2007. Thereafter, the court sentenced J.L.R. to ninety days of imprisonment. He was released in late 2007. In November 2007, W.M. was arrested and charged with forgery. She was briefly incarcerated and her probation continued.

On November 30, 2007, the Family Part entered an order granting custody of the children to the Division. At or about this time, W.M. tested positive for cocaine. The Division provided W.M. with supervised visits with the children at the Multicultural Services Agency (MCSA). The visits continued until March 2008, when MCSA closed.

In January 2008, W.M. and J.L.R. failed to appear at their probation hearings, and warrants for their arrest were issued. W.M. was incarcerated briefly on March 9, 2008, but was released. J.L.R. was incarcerated at or around the same time, and remained in prison until April 28, 2008, at which time he entered an inpatient treatment facility in Newark. Though the Division initially permitted the children to visit him, these visits were eventually suspended due to J.L.R.'s noncompliance with the program.

In April 2008, W.M. entered the Imani Park facility in Edison for treatment of her drug abuse. On July 10, 2008, the trial court ordered the children to be returned to W.M.'s care at Imani Park. It appears that W.M.'s drug use was in remission for a period of time, and she was told that completion of an intensive rehabilitation program was no longer required.

However, on September 17, 2008, W.M. tested positive for methadone, opiates, marijuana and benzodiazepines. The Division allowed the children to remain with W.M. at Imani Park but instituted certain measures to ensure their safety there. The Division also told W.M. that J.L.R. would not be permitted to visit the children at Imani Park. The Division later learned that J.L.R. visited W.M. using an assumed name, and W.M. used her children's urine for her drug screens.

In September 2008, the Division asked the trial court to remove the children from W.M.'s care. The court agreed. The children were placed in another foster home and W.M. was permitted to visit them. W.M. then entered Renaissance House, where she continued her drug treatment. In December 2008, the children were returned to W.M.'s care at Renaissance House. At or about this time, J.L.R. tested positive for cocaine and oxycodone.

In January 2009, W.M. tested positive for heroin. After this information came to the Division's attention, it filed an order to show cause and verified complaint in the trial court again seeking custody of the children. The court granted the Division's application. The children were placed in a foster home but were removed from that home on January 30, 2009, because of J.L.R., Jr.'s behavior.

On February 13, 2009, J.L.R. was arrested for theft and he was again incarcerated. J.L.R. was later sentenced to six-and-one-half years in prison and he will first become eligible for parole in February 2012. On February 24, 2009, W.M. was admitted to the CURA inpatient drug treatment program in Vineland. The children visited W.M. at CURA but it appears that the visits were problematic because of J.L.R., Jr.'s disruptive behavior. The Division attempted to place the children with other families but they had considerable difficulties doing so, in part because of J.L.R., Jr.'s behavior.

On March 12, 2009, the Division filed a complaint for guardianship of the children. When L.K. learned that the children were back in foster care, she expressed a willingness to assume responsibility for the children. On July 6, 2009, the Division placed the children with L.K., and the children have remained with her since that time. L.K. has informed the Division that she would like to adopt the children. Meanwhile, the children had supervised visits with W.M. at CURA. It appears that both children exhibited behavioral problems during the visits. W.M. later transferred from CURA to St. Claire's transitional housing program in Newark.

The trial court conducted a trial in the guardianship matter, and on June 24, 2010, placed its decision on the record. The court found that the Division had established by clear and convincing evidence all of the requirements under N.J.S.A. 30:4C-15.1(a) for termination of W.M.'s and J.L.R.'s parental rights to J.L.R., Jr., and D.A.R. The court memorialized its decision with an order dated June 22, 2010. W.M. and J.L.R. appealed. We entered an order dated August 9, 2010, consolidating the appeals.

II.

Before addressing the specific issues raised by the appellants, we briefly summarize the legal principles that apply to their appeals. 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 petition the court for an order terminating parental rights in the "best interests of the child." N.J.S.A. 30:4C-15(c). The petition may be granted if the following requirements are established by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

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

 

"The four criteria enumerated in the best interests standard 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." K.H.O., supra, 161 N.J. at 348.

The scope of our review in an appeal from an order terminating parental rights is strictly limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid.

III.

We first consider W.M.'s appeal. W.M. appears to concede that the children's health and development have been harmed by their relationship with her, thereby establishing the first prong of the statutory "best interests" test. She argues, however, that the Division failed to establish the other prongs of the test. W.M. further contends that she was denied a fair trial as a result of several evidentiary rulings by the court.

A. Second Prong of the "Best Interests" Test.

W.M. argues that the Division failed to establish the second prong of the statutory test. W.M. contends that the trial court erroneously shifted the burden of proof on this prong to her. W.M. further contends that, because her drug abuse is presently in remission, she is capable of eliminating the harm to the children and providing them with a safe and stable home.

"The second prong of the statutory standard relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. The Division must demonstrate by clear and convincing evidence that the parent "has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

The court must consider whether the parent is unable or unwilling to prevent harm to the children in the future. K.H.O., supra, 161 N.J. at 352. However, "'[p]redictions as to probable future conduct can only be based upon past performance.'" N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (quoting J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 174 N.J. 39 (2002).

We are satisfied that the trial court did not shift the burden of proof on this prong of the "best interests" test from the Division to W.M. Contrary to W.M.'s argument, the trial court did not require that W.M. prove she is a fit parent. Rather, the court's decision reflects its understanding that the burden of proof on all of the prongs of the statutory test rests with the Division.

We are also satisfied that there is sufficient evidence in the record to support the trial court's finding that W.M. is unable or unwilling to eliminate the harm to the children and a delay in a permanent placement will further harm the children. The trial court correctly found that the Division had established the second prong of the test with clear and convincing evidence.

In its decision, the court noted that, up until the time of trial, W.M. had made an admirable attempt to deal with her drug problem but had failed, in over three years of treatment, to provide a protective environment for the children. The court noted that W.M. lacked employment, education, stable housing or independence. The court also noted that W.M. had not yet moved away from a structured environment and her history indicated that she previously relapsed into drug abuse when faced with the stresses of everyday life.

In addition, the court found that W.M. did not appreciate the bonds that had developed between the children and L.K. Therefore, W.M. would not be able to mitigate the harm should the children be removed from L.K.'s care. Furthermore, the court found that W.M. had not shown an appreciation for the children's special needs, specifically their behavioral problems. The record shows that the children would exhibit regressive behavior after their visits with W.M. The evidence presented at trial supports these findings.

Dr. Donna LoBiondo, a clinical psychologist, testified for the Division. Dr. LoBiondo had performed a psychological evaluation of both parents. As to W.M., Dr. LoBiondo testified that W.M. had a history of psychiatric instability, in the form of Bipolar Disorder, for which she is taking medications, as well as "[h]istrionic personality features [that] comprise a prominent part of her personality defensive structure." The doctor noted that W.M. had demonstrated a difficulty abstaining from drug abuse, even in structured settings where she had been allowed to care for the children while being treated for drug abuse.

Dr. LoBiondo further testified that W.M.'s drug abuse was in "early" remission but she cautioned that this diagnosis was based on the fact that W.M. had spent three years in a highly structured program "where peer and staff pressure is high to maintain a life without drugs and where she is closely monitored." The doctor stated that she had real concerns as to whether W.M. could "remain without drug use under conditions of real world stress," particularly because she had been in a structured program for several years and thus had not maintained her own apartment.

Dr. LoBiondo additionally testified that the children had become strongly attached to L.K., and removal of the children from her care would cause harm to their egos and personality development. The doctor stated that W.M. was not psychologically able to help the children "transition" from the foster parents. She also opined that, from a psychological standpoint, waiting the additional time that it would take for W.M. to become capable of safely parenting the children would not be in their best interests, because removal of the children from their foster parent would place them at high risk for various forms of "attachment pathology." The doctor stated that the children would face greater risk if they were again removed from W.M.'s care at some point in the future.

W.M. argues, however, that the trial court erred by failing to afford her more time to address her drug abuse. We disagree. In our view, the evidence clearly and convincingly established that W.M. is not presently capable of providing a safe and stable home for the children and will not be able to do so in the foreseeable future. Although W.M. has had a period of remission from drug use, the record does not establish a likelihood that she will remain drug-free after reunification with the children, thereby creating the prospect that the children would again be removed from her care if she returns to drug abuse.

As Dr. LoBiondo pointed out, W.M. has refrained from drug use while in a structured environment but her ability to remain drug-free would be questionable if she were faced with the normal stress of maintaining a household and caring for the children. Moreover, the evidence clearly and convincingly established that a delay in permanent placement will add to the harm the children have experienced as a result of their relationship with W.M. The children's need for "permanent and defined parent-child relationships" is paramount. J.C., supra, 129 N.J. at 26.

B. Third Prong of the "Best Interests" Test.

Next, W.M. argues that the Division failed to establish the third prong of the statutory test. W.M. argues that the Division failed to consider an alternative to termination of parental rights, specifically, placement of the children into custody of A.C. Again, we disagree.

The record shows that A.C., the children's uncle, initially accepted responsibility to care for the children, but requested that they be removed after he had a dispute with W.M. and J.L.R. Thereafter, the Division considered placement of the children with other relatives but those placements were not feasible.

Consequently, the Division determined that the children should be placed in foster care. Later, A.C. contacted the Division and expressed an interest in assuming responsibility for the children, but the Division ruled him out as a suitable caretaker because he had not provided documentation showing his immigration status. A.C. did not challenge the Division's determination.

We are satisfied that the evidence established that the Division considered placing the children with family members. In addition, the Division reasonably determined that A.C. was not a suitable caretaker. In our view, the record supports the trial court's determination that, under the circumstances, there was no alternative to termination of parental rights.

W.M. argues, however, that our recent decision in N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), supports her contention that the trial court erred by finding that the Division satisfied the third prong of the "best interests" test. In K.L.W., the Division was aware that the child at issue had siblings who were being cared for by the child's maternal grandparents but made no attempt to contact the grandparents or other relatives before placing the children in a foster home. Id. at 572. We found that, because the Division had not pursued a potential kinship legal guardianship as required by N.J.S.A. 30:4C-12.1, it had not met its burden with regard to the third prong of N.J.S.A. 30:4C-15.1(a). Id. at 580-81.

In our view, W.M.'s reliance upon K.L.W. is misplaced. Here, the Division attempted to place the children with family members but was unable to do so. Thus, this is not a case in which the Division failed to explore potential placement of the children with their relatives before placing them in foster care.

C. Fourth Prong of the "Best Interests" Test.

W.M. additionally argues that the Division failed to prove the fourth prong of the "best interests" test. W.M. argues that the trial court erroneously relied upon the children's bonds with their foster parent when it found that this prong of the test had been established. In addition, W.M. argues that the court failed to consider the effect that termination of parental rights would have upon their relationship with a sibling, C.M. We find no merit in these arguments.

Evidence of harm children may suffer from severing the bond with a foster parent "cannot, in and of itself, serve as a legally sufficient basis for termination of the parent's parental rights." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 59 (App. Div. 2010). However, such evidence may be considered as it relates to the fourth prong of the statutory test, if the Division has met its burdens of proof on the other prongs of the test, provided that the Division proves that the parent's actions or inactions "substantially contributed" to the creation of the bond between the children and the foster parent. Id. at 80.

Here, the record established that the children's bonds with their foster parent were created as the direct consequence of W.M.'s actions or inactions, which caused their removal from the home and placement in foster care. Therefore, the trial court properly considered those bonds in determining whether the fourth prong was established.

In addition, the potential impact of the termination of W.M.'s parental rights upon the children's sibling relationships does not alter the trial court's conclusion that termination of W.M.'s parental rights would not do more harm than good to the children. There is no evidence that J.L.R., Jr., and D.A.R. had formed any significant bonds with their older sibling, C.M. Moreover, there is no indication that termination of W.M.'s parental rights will necessarily result in the severance of any relationship the children might have with C.M. See In re D.C., 203 N.J. 545, 551-52 (2010) (holding that in certain circumstances sibling visitation can be ordered even in an adoptive setting).

D. Evidence Rulings.

W.M. argues that she was denied a fair trial because of certain evidentiary rulings by the trial court. We consider W.M.'s challenge to these rulings under an abuse of discretion standard. "Absent a manifest denial of justice, we do not disturb a trial judge's reasoned exercise of his or her broad discretion when making relevance and admissibility determinations." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 622 (App. Div. 2010).

W.M. contends that the trial court erred by precluding Dr. Daniel Greenfield from testifying as to the drug treatment plan that W.M. should follow in the future. At the final pretrial conference, which was held on April 1, 2010, the court ruled that it would only accept expert reports that were completed by the date of the trial. Dr. Greenfield had submitted a report based on his evaluation of W.M. in July 2009. Dr. Greenfield submitted an updated report dated May 5, 2010, which was two weeks after the trial began.

The court ruled that the report would not be considered. At the trial, the court ruled that Dr. Greenfield would not be permitted to testify as to a preferred treatment plan for W.M. because that topic had been addressed in the barred May 2010 report. The court also found that the testimony on this issue was not relevant to any of the issues to be decided.

We are satisfied that the court did not abuse its discretion by limiting Dr. Greenfield's testimony in this manner. In our view, the court properly determined that Dr. Greenfield's updated report had not been submitted in a timely manner. Moreover, Dr. Greenfield's testimony as to the treatment plan he thought W.M. should follow in the future did not have a direct bearing on any material issue in the case.

We can assume that in the future, W.M. would be required to have a treatment plan to deal with her drug abuse. However, Dr. Greenfield's testimony about the features of such a plan did not address the central issue in this case, which was whether W.M. would likely remain drug-free out of the structured environment in which she has been residing.

Next, W.M. argues that the court erred by preventing Dr. Andrew Bernstein from testifying about the facilities at St. Claire. Dr. Bernstein was W.M.'s treating psychologist at St. Claire. W.M. offered the doctor as a witness for the purpose of establishing certain facts regarding W.M.'s treatment.

W.M.'s counsel asked Dr. Bernstein to testify concerning the environment at St. Claire, including its location and the ability of patients there to live in the "real world." The Division objected to this line of questioning and the court sustained the objection because Dr. Bernstein was not employed by St. Claire but merely worked there as a contract psychologist.

We are convinced that the court mistakenly exercised its discretion by limiting Dr. Bernstein's testimony in this manner. Dr. Bernstein was called as a fact witness and, since he provided services to patients at St. Claire, he had sufficient personal knowledge to testify concerning the facilities and environment there.

However, we are satisfied that the court's error was harmless. In our view, Dr. Bernstein's testimony would not have refuted the Division's contention that, although W.M. had been drug free while in the structured setting at St. Claire, this experience did not indicate that she would remain drug free outside of that environment.

In addition, W.M. contends that the court erred by barring the testimony of the Division worker who first handled this matter, and the testimony of certain persons from CURA who would have testified as to her coping mechanisms and ability to remain drug free. We agree with W.M. that the court mistakenly exercised its discretion by barring the testimony of these witnesses.

We are, however, satisfied that the error was harmless. The Division presented another employee to testify concerning all of its efforts regarding the family, and Dr. Greenfield generally addressed the topics the CURA witnesses would have covered in their testimony.

In summary, we conclude that there is sufficient credible evidence in the record to support the trial court's conclusion that the Division had proven by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1(a) for termination of W.M.'s parental rights.

IV.

We turn to J.L.R.'s appeal. We note that, in his brief, J.L.R. appears to concede that the children have been harmed by their relationship with him. He also appears to concede that he will not be capable of providing the children with a safe and stable home in the foreseeable future due to his present incarceration.

J.L.R. nevertheless argues that the Division failed to establish the first prong of N.J.S.A. 30:4C-15.1(a) as to W.M. J.L.R. contends that the required showing was not made here because, while drug abuse is "universally frowned upon," W.M. has established "objective manifestation of remission[.]" We find no merit in this argument.

The first prong of N.J.S.A. 30:3C-15.1(a) requires that the State demonstrate the children were harmed by the parent and "[h]arm in this context involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is "on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

We are satisfied that the record fully supports the trial court's finding that the children were harmed by their relationship with W.M. W.M.'s persistent drug use resulted in the removal of the children on several occasions. Furthermore, as the trial court pointed out in its decision, W.M. essentially ceased functioning as a parent for these children. Although W.M. has maintained a level of sobriety since January 2009, the fact remains that the children have been harmed by her use of illegal drugs and failure to provide them with a safe and stable home.

J.L.R. further argues that the Division did not establish the second and third prongs of the statutory test as to W.M. In addition, J.L.R. maintains the court erred by limiting the testimony of W.M.'s witnesses. As we stated previously, these arguments are without merit.

In addition, J.L.R. contends that the trial court's order should be reversed so that the children could be reunited with W.M. or placed with a family member. He additionally contends that his parental rights should not be terminated because, upon his release from incarceration, he could parent the children and maintain the parent-child relationship. These contentions are "without sufficient merit to warrant discussion[.]" R. 2:11-3(e)(1)(E).

Affirmed.