DIVISION OF YOUTH AND FAMILY SERVICES v. R.B. and W.B IN THE MATTER OF THE GUARDIANSHIP OF Z.B., L.B. AND V.B minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1535-10T2

A-1756-10T2

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.B. and W.B.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Z.B., L.B. AND V.B., minors.

___________________________________

February 28, 2012

 

Submitted December 13, 2011 - Decided

 

Before Judges Messano, Espinosa and Kennedy.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-19-10.

 

 

 

 

 

 

 

 

Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Miles S. Lessem, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant W.B. (William J. Sweeney, Designated Counsel, on the brief)

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, defendants W.B. and R.B. appeal from the Family Part's October 12, 2010 order terminating their parental rights to their children, Z.B., L.B. and V.B. W.B. contends that the statutory requirements of N.J.S.A. 30:4C-15.1 were not proven by clear and convincing evidence and R.B. contends that the Division of Youth and Family Services (DYFS or the Division) "failed to produce evidence demonstrating it met the burden to satisfy the second, third and fourth prongs in N.J.S.A. 30:4C-15.1(a)(3)[sic]." Both also contend that the court erred in not granting kinship legal guardianship of the children to a relative, N.B., pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge Julio Mendez in his written opinion. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

I

W.B. and R.B. are the biological parents of Z.B., born September 24, 2006; V.B., born September 17, 2007; and L.B., born September 18, 2008. W.B. has given birth to ten children, and R.B. is the father of six of those ten children. Neither W.B. nor R.B. has custody of any of their children.

The involvement of DYFS with the family began in 1997 when it received a referral reporting W.B. had been neglecting one of her children, who had died in the hospital. The Division did not substantiate neglect.

In 2006, the Division again became involved when it received a referral that W.B. had been treated in an emergency room for a laceration and that she was pregnant with an elevated blood alcohol level of .259. W.B., who was pregnant at that time with Z.B., contended the laceration occurred when she was hit on the head during a bar fight. Although neglect was unfounded, W.B. was referred to an outpatient treatment program for alcohol dependency. She was terminated from that program due to non-compliance. R.B. was also evaluated for substance abuse and was referred to a level two intensive outpatient program. However, the services were never completed. On September 24, 2006, W.B. gave birth to Z.B.

On September 17, 2007, W.B. gave birth to V.B. At the hospital, W.B. was found to have an elevated blood alcohol level of .244 and was given a substance abuse evaluation. She was referred to intensive outpatient treatment but was terminated from services due to lack of attendance. On May 5, 2008, W.B. was admitted to the CURA Intensive Outpatient Program for substance abuse and, on her first urine screen, tested positive for cocaine. Because of that positive test, the Division determined that a safety protection plan was required. The plan required that any contact made between W.B. and her children must be supervised at all times.

In June 2008, the Division received a report that W.B. had again tested positive for cocaine and had stopped attending treatment. It was also reported that she was five months pregnant. After attempting to locate W.B. and her children for several weeks, a DYFS caseworker visited the home of W.B.'s mother. The mother denied knowing the whereabouts of W.B. and the children, Z.B. and V.B. However, as the caseworker was about to leave, Z.B. came into the room and appeared to be filthy and uncared for. W.B.'s mother at this point admitted that V.B. was also in the house and he was discovered to be also in a filthy condition and "covered in vomit." The mother advised that W.B. had left the children with her and she did not know where W.B. was living at the time. Consequently, the Division removed both children from the home because W.B. had violated the safety plan and because of her history of substance abuse and non-compliance.

On June 24, 2008, the Division filed a Verified Complaint for custody of Z.B., V.B. and the unborn baby. The trial court granted custody to the Division and required both W.B. and R.B. to submit to substance abuse tests and participate in treatment services. It also required W.B. to participate in psychological services. On July 25, 2008, a comprehensive health evaluation report was completed for Z.B. The report noted that Z.B.'s development fell substantially short of the average growth rates for normal children and noted problems with growth failure, delayed immunization, abnormal behavior and development. Z.B. was diagnosed with "failure to thrive" and referred to the Children's Hospital of Philadelphia.

Also, in July 2008, R.B. completed a substance abuse assessment and was referred again to an outpatient treatment program, but the treatment was not completed due to his non-compliance. Again, in August 2008, R.B. was admitted to a substance abuse treatment program after being referred by the Cumberland County Probation Department. He eventually stopped attending and tested positive for marijuana and was discharged from the program for failure to attend its sessions.

On September 20, 2008, the Division received a referral from the South Jersey Regional Medical Center that W.B. had given birth to L.B. on September 18, 2008. Although she tested negative for cocaine at the time of her birth, she attempted to leave the locked ward against medical advise and abandon the newborn child. The Division contacted R.B. and W.B. on September 22, 2008, and both indicated that they would prefer to have the child placed with a relative.

On September 24, 2008, the Division filed an amended verified complaint for custody of L.B. The trial court granted the Division custody and supervision of L.B. L.B. was eventually placed with a paternal relative.

In October 2008, a medically fragile assessment report was completed for both Z.B. and V.B. and it was recommended that both children be evaluated for fetal alcohol syndrome. On October 22, 2008, Dr. Matthew Deardoff examined both children at the Children's Hospital of Philadelphia and his initial impression was that both children displayed signs and symptoms "consistent with fetal alcohol effects." On October 23, 2008, both R.B. and W.B. attended a meeting of FamCare Parent

Education but neither attended any further meetings. R.B. was also scheduled for substance abuse evaluations but did not attend any of the appointments. At the December 22, 2008 compliance review hearing, both W.B. and R.B. attended and the court ordered both to receive psychological and psychiatric evaluations, submit to random urine screenings and attend parent skills training at FamCare. FamCare thereafter attempted to reschedule their attendance but neither attended the FamCare sessions.

On January 28, 2009, Dr. Edward Baruch completed a psychiatric evaluation on W.B. He recommended that W.B. would benefit from individual counseling to address her sobriety issues and parenting classes to improve her ability to care for her children. On March 11, 2009, Dr. Baruch undertook a psychiatric evaluation of R.B. in which he recommended that R.B. attend CURA, pursue full-time employment and attend therapy. He also stated that R.B. demonstrates "poor insight and judgment into the nature and severity of his history of domestic violence, legal issues, cannabis abuse and familial difficulties." R.B. was admitted to CURA's intensive outpatient program but never attended treatment after his admission and was discharged from the program for non-compliance. Also, in April 2009 the Division was notified that W.B. had missed at least four counseling appointments at Rowan University and her case was being "closed."

On May 26, 2009, W.B. and R.B. began the Robin's Nest Family Ties program to assist in complying with services required by the Division and in providing for their children's needs. Initially, Family Ties conducted two hour supervised visits between W.B. and R.B. and the three children, but reduced the visits to one hour after "numerous concerns arose during a two hour visit . . . on June 2, 2009." The Family Ties facilitator became concerned at that point about the parenting knowledge and supervision skills of R.B. and W.B. and Family Ties eventually ended services to them on September 29, 2009, after a number of unexcused missed visits.

On May 27, 2009, Dr. Roger T. Barr completed a psychological evaluation in which he reported that R.B. "presents with an almost vagabond lifestyle" and that he was unable to develop any information which would support consideration of R.B. for reunification with his children. Also in May 2009, the resource parent for Z.B. and V.B. called the Division and requested Z.B. be removed from the home due to his uncontrollable behavior. It was reported that Z.B. was biting and hitting other children at daycare, had attacked V.B., was eating feces and was otherwise aggressive. Z.B. was eventually placed with L.B. in the home of a parental relative who is a resource parent as well.

On November 6, 2009, the Division filed a complaint for guardianship of Z.B., V.B. and L.B. The court required W.B. and R.B. to submit to psychological evaluation and a bonding evaluation and discovery was exchanged.

During the course of the trial, Dr. James Loving was called as an expert for the Division. His psychological reports on W.B. and R.B. and bonding evaluation reports were submitted into evidence. Dr. Loving opined that it was his "very strong opinion" that W.B. had longstanding and ongoing alcohol problems and that her risk of relapse was high. He noted that she does not have parenting skills to parent the children and lacks capacity to care for two Fetal Alcohol Syndrome children due to W.B.'s own substance abuse issues. Dr. Loving also opined that W.B. is a risk to her children due to her alcohol issues and she is unlikely to comply with treatment.

With respect to the children, Dr. Loving noted that even if W.B. were able to "rectify her issues" the children continue to bond with their current caregivers and disrupting that bond presented a risk to the children. Dr. Loving concluded that W.B. "cannot be viewed as a candidate for safe, healthy, reunification now or in the foreseeable future." He noted that she poses an extremely "high risk for ongoing alcohol abuse and dependence" and also poses a "high risk of child maltreatment due to her poor understanding of her children's needs and her overall lax and ineffective approach to parenting." He added that her "existing history of treatment resistance and non-compliance speaks for itself and there is no recent development that would suggest a positive turn-around for [W.B.] as of the current evaluation."

Dr. Loving also testified with respect to the psychological evaluation and bonding evaluation he performed with respect to R.B. He testified that R.B. has very little insight into special children's needs and that R.B. presents with an antisocial personality disorder and is not a candidate for a safe and healthy reunification with the children now or in the foreseeable future. He opined that there is no risk of harm if the relationship of W.B. and R.B. with the three children were severed.

Dr. Quintana, a psychologist, testified on behalf of W.B. He noted that W.B. was not ready to parent children at that time and would need to take the substance abuse program seriously and complete an intensive parenting skills class. Dr. Quintana concluded a kinship legal guardianship would be an appropriate outcome for this case because W.B. is making a "good faith effort" at treatment. Dr. Quintana conceded on cross-examination that W.B. suffers from narcissistic personality disorder in which she prioritizes alcohol above her children. On October 12, 2010, the trial judge rendered his decision terminating the defendants' parental rights to Z.B., V.B. and L.B.

This appeal followed.

II

Under N.J.S.A. 30:4C-15.1(a), parental rights can be terminated only when the State proves that:

(1)The child's safety, health or development has been and 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 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.

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511. The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" 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)).

Further, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should show deference to family court factfinding.'" N.J. Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Moreover, consideration of the four prongs of the statutory test must be made as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Clear and convincing evidence is evidence which results in a firm belief or conviction as to the truth of the fact or matter sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record overall that the Division met the statutory test by clear and convincing evidence.

While R.B. does not challenge the trial court's findings with respect to prong one of the statutory test, W.B. does claim that the Division failed to meet its burden under prong one because the "harm" is "in the progress of being ameliorated by treatment" of W.B. and by her "serious efforts to obtain housing and employment."

A child's best interest cannot be sacrificed because of a parent's inability to address potential future harm, despite her willingness to try. See N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.)("[T]he New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child"), certif. denied, 180 N.J. 456 (2004). In this case, the trial judge correctly concluded that the Division has established the first prong of the statutory test by clear and convincing evidence. Judge Mendez opined in part:

WB presents serious issues with regard to her parenting abilities. It is the Court's opinion that she does not have the ability to safely parent the children. She has never acknowledged her serious alcohol problem. She disappears for days at a time, and has in the past neglected to provide the Division with an address for herself or the children despite a safety plan being in place. She lacks an understanding of the children's serious medical problems. She has a long history of multiple incarcerations. Additionally, she has abandoned the children on at least one occasion at her mother's home, where they received less than adequate care, and without telling her mother or the Division where she could be reached. WB was also unsupervised with the children despite a safety plan being in place. She has consistently failed to attend appropriate services, has been terminated from several services for lack of participation and attendance, and must be reminded and rescheduled a number of times before she will actually attend an evaluation or appointment. According to Dr. Loving, WB poses a high risk of child maltreatment, due to her poor understanding of her children's needs and overall la[x] and ineffective approach to parenting. Dr. Loving concludes that WB poses a high risk for ongoing alcohol dependence and has a dismal prognosis for cooperating with necessary services. The Court is in full agreement with Dr. Loving's findings.

These findings and conclusions are overwhelmingly supported by the record.

Both W.B. and R.B. challenge the trial court's findings with respect to the second prong. W.B. contends that she has made "some progress" on her "journey back to a normal life" and that this gives rise to an "expectation that she can get back on her feet in the near future." R.B. contends that, "even assuming [R.B.] has caused any damage to the children, his actions have shown that he is capable of seeing that the children are taken care of and correcting any potential danger." He adds that he has also demonstrated that he could "handle a job and had previously held one for seven months."

In addressing the second prong, Judge Mendez opined that W.B.'s alcohol addiction "prevents her from appropriately addressing the needs of her children." He added that, "in 2006 and throughout this litigation the Division has offered her services repeatedly and W.B. has been unwilling or unable to complete the services." With respect to R.B., the judge noted that R.B. has failed to "complete services and has been unwilling or unable to eliminate the harm facing the children. During most of the litigation, R.B. has ignored services that have been made available to him." He noted that R.B. showed "no inclination toward attempting to find improvement nor has he shown any recognition of or willingness to accept treatment for his marijuana use." Again, these findings are all supported in the record and will not be disturbed on appeal.

As to the third prong, W.B. contends only that she was provided with the "usual menu of services" and failed to consider alternatives to termination and R.B. contends that he received no assistance for either his "issues with gambling or anger management." He adds, also, that DYFS made no serious efforts to reunify the family.

Judge Mendez found that both W.B. and R.B. made "very minimal efforts" to participate in the reunification effort. He noted that W.B. "sporadically participated" in services to address her alcohol dependence but never participated in services to completion. He found that both W.B. and R.B. missed several visits with the children and both were "routinely discharged from what substance abuse service they were provided." He added that the Division "offered services and made reasonable efforts to reunify the parents through the last four years. The parents had been given multiple opportunities to complete services and have failed to take advantage of those opportunities." Again, these findings are well supported in the record.

R.B.'s effort to address his anger management and gambling problems notwithstanding, the record below is replete with evidence that the Division tried on multiple occasions to get R.B. and W.B. to attend substance abuse and parenting skills training but both actively resisted those efforts. There is no suggestion here that R.B., if he attended anger management or gambling addiction classes, would also address his parenting and substance abuse problems.

With regard to the fourth prong, R.B. claims that he has "at least some type of attachment with each of his children. He can also take care of them and control them." W.B. and R.B. also challenge the Division's proofs on the fourth prong by claiming that kinship legal guardianship should have been considered.

In addressing the fourth prong, Judge Mendez found:

In the case before the Court, the child's need for permanency and a stable home is a central factor in the Court's decision. The parents in this case are not currently fit to parent these children, and given their protracted history with the Division, including their lack of engagement in services, the Court finds that it is highly unlikely that they will be fit to parent any time in the near future. Additionally, each child has been shown to be strongly and positively bonded to their respective caregivers. WB, however, has been shown to have very little bond with any of the children, even the older two who were in her care for some time. Her lack of engagement with the children during visits and bonding evaluations and her continuing to drink after having two FAS children shows how she would further be unable to address any harm that might come to the children after being removed from their caregivers.

 

RB's bonding evaluation revealed a positive but somewhat neutral bond between himself and the children. Dr. Loving noted that RB was appropriate with the children, and quite affectionate, and that the children recognized him and showed no reluctance to engage with him. However, none of the children see RB as a central attachment figure in their lives-their caretakers perform those roles. The Court finds that severing the relationship between RB and the children would not do more harm than good because of the great family and professional supports being provided by the caretakers; the children are bonded to the caretakers and the caretakers provide all the support the children require.

 

These findings, too, are well supported in the record.

The Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7 (the Act) provides the type of legal guardianship for children "who cannot reside with their parents due to their parent's incapacity or inability" and does not terminate parental rights.

Senate Budget and Appropriations Committee, Statement to Senate Bill No. 1813 (June 25, 2001), reprinted in N.J.S.A. 3B:12A-1. The statute was adopted because the Legislature found it necessary to add another alternative permanent placement option, beyond custody, where adoption is neither feasible nor likely. N.J.S.A. 3B:12A-1(c); N.J. Div. of Youth and Family Servs. v. T.I., 423 N.J. Super. 127, 135 (App. Div. 2011). Here, the Division caseworker testified at trial that both L.B. and Z.B. are in the care of a parental relative who is willing to adopt both children. She also testified that V.B.'s caretaker, a non-relative, is willing to adopt. In addressing this issue, Judge Mendez stated,

the [c]ourt gives little weight to Dr. Quintana's conclusion that [kinship legal guardianship] is the appropriate plan in this case because he has never completed any bonding evaluations between the parents and the children, and has not taken into account the long history of alcohol abuse and neglect of the children. In this case, both caretakers for the children are committed to adoption

Because adoption was both feasible and likely, the trial court appropriately ruled out kinship legal guardianship for these children and termination of parental rights was the proper remedy.

Affirmed.