NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1733-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

K.M.,

 

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Ja.M. and Je.M., minors.

__________________________________

December 21, 2012

 

Submitted December 12, 2012 - Decided

 

Before Judges Sapp-Peterson, Nugent and Haas.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-145-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Ja.M. and Je.M. (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant K.M. (Karen) appeals from the November 1, 2011 judgment of guardianship of the Family Part terminating her parental rights to her two sons, Ja.M. (Jay) born on January 5, 2001, and Je.M. (Jerry) born on April 24, 2008.1 She argues the Division of Youth and Family Services2 (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of Karen's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009)(holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm.

 

I.

The Division has been involved with Karen since she, herself, was a child. She ran away from home as a child, had behavioral problems, and was involved in prostitution. When Karen was fourteen and in residential placement, Jay was born. Shortly after his birth, Jay was placed with G.M., his maternal great-aunt and, in July 2005, G.M. entered into a Kinship Legal Guardianship (KLG) of Jay. Karen eventually moved in with her grandfather and aged out of the system.

On April 29, 2008, Karen went to court to attempt to vacate the KLG and obtain custody of Jay. While there, the Division supervisor observed that Karen was acting strangely and it was discovered she had given birth to Jerry just five days earlier.3 The judge ordered Karen to undergo a drug screening and she tested positive for Phencyclidine (PCP). Further investigation revealed that Karen had a history of PCP use. However, Karen claimed she had not used drugs during her pregnancy and that the test must have been administered incorrectly.

The Division worked with Karen to develop a safety protection plan. The plan required her to undergo a substance abuse assessment, attend outpatient drug treatment, and accept twenty-four hour homemaker services. The Division also referred Karen for a mental health evaluation and random drug screens. Karen agreed to the plan and she was permitted to take custody of Jerry once he was released from the hospital.

However, Karen did not comply with the requirements of the case plan. Between May 9 and May 21, the homemaker service was not able to gain access to her residence on at least six occasions. In a telephone call on May 22, the Division case manager attempted to explain the need for compliance to Karen, but she stated "she was a grown woman" and "didn't need anyone to tell her how to raise her children." Karen failed to report for either outpatient or inpatient substance abuse treatment. On May 27, she tested positive for marijuana and she refused to participate in a drug assessment on May 28. Based on Karen's refusal to comply with the safety protection plan, the Division conducted an emergency removal of Jerry on May 22, 2008. Jerry was placed with a foster family.

After the child was removed from her custody, Karen enrolled in a drug program. However, she continued to use PCP, testing positive at least eight times between October 2008 and April 2009. She continued to deny she had a drug problem and frequently accused the program staff of mixing her urine with that of others. She tested positive for PCP at least three times in July 2009. As a result, the court ordered her to attend a twenty-eight day substance abuse program.

Following her completion of this program on November 20, 2009, Karen was referred to a hospital-based behavioral health program for the continuation of her care. Because there was a waiting list at this facility, the Division referred Karen to a substance abuse treatment program. However, Karen failed to attend that program. She again tested positive for PCP on numerous occasions.

Throughout 2008 and 2009, Karen was permitted to participate in weekly supervised visitation with Jerry. During the times she attended, case workers reported that the meetings were positive. However, Karen frequently appeared late and she failed to show up on several occasions.

In October 2009, the Division removed Jay from G.M.'s care after the child was beaten by his uncle, W.M. The uncle admitted the assault. Jay was thereafter placed in a series of foster homes, where he displayed oppositional, defiant, and sexually-inappropriate behaviors. Jay was then placed in a residential facility.

After having failed to attend three scheduled appointments for a psychological examination, Karen met with Dr. Charles Daly, who was qualified as an expert in psychology at the trial. Karen arrived twenty-five minutes late and appeared "disheveled." She had trouble concentrating and appeared to be under the influence of drugs. Karen refused to cooperate with the testing. Dr. Daly testified that her answers to the test questions "appeared pretty much to be random. And sort of sing-songing." Therefore, the tests were inconclusive. Karen told Dr. Daly she had only used PCP once before and that she did not have a drug problem.

Dr. Daly opined that Karen was "clearly not competent to be a safe and nurturing parent." He testified that the likelihood that Karen could overcome her issues and become a better parent was "very, very, small."

Karen Wells, Ph.D., also testified for the Division and was accepted by the court as an expert in psychology. Dr. Wells conducted a psychological evaluation of Karen on March 16, 2010. During the evaluation, Karen had difficulty staying focused and she refused to complete all of the testing materials. While these actions made it difficult to assess Karen's cognitive functioning, Dr. Wells concluded that, based on the lack of stability in Karen's life, her non-compliance with treatment services, and her history of substance abuse, it would be "counterproductive" to return the children to Karen's care.

Dr. Wells also conducted bonding evaluations. Dr. Wells found that that Jerry was "familiar" and comfortable with Karen and she was "lovingly engaged" with the child. However, Dr. Wells concluded that Jerry's foster mother was his "psychological parent" because the child related to her "as someone who takes care of his primary needs, looks to her for affection and she doesn t have to pull it out of him in the same manner in which [Karen] was able to get that from him. [He] looked to the foster mother to give it to him." Based upon this finding, Dr. Wells concluded that Jerry would suffer no long-term harm if he were permanently separated from Karen.

With regard to Jay, he had been living at the residential facility for about eight months when Dr. Wells met with him. The child had been diagnosed with attention deficit disorder and had a history of academic delays and behavioral issues. Based on these concerns, Dr. Wells recommended that Jay complete eighteen months in a residential setting and then the Division could pursue a select home adoption for him. While Dr. Wells testified that Karen's love and affection could be beneficial for the child, she would not be an appropriate parent. Dr. Wells explained that Karen's cognitive capacity, lack of personal stability, and substance abuse problems "eliminate her as being a possible person to provide care for [Jay] given the extent and nature of his own needs." Thus, Dr. Wells opined it would not be detrimental to Jay if Karen's parental rights were terminated because "given his state, [he] cannot afford to have involvement with anyone who would make false promises but not be able to have something to do with it. He cannot tolerate a psychological remission."

Dr. Rachel Nelson testified on behalf of the Law Guardian and was qualified as an expert in psychology. She evaluated Karen on April 13, 2010. Based upon her examination, she found Karen to be evasive, guarded and uncooperative. She slurred her words and appeared to be sleepy. Based upon the battery of tests she performed, Dr. Nelson concluded that Karen's overall cognitive ability was "in the mental retardation stage." She made "extremely severe errors reflecting visual perceptual difficulties" and her answers reflected a "disorganized scattered approach to the task." Karen was not able to even complete two of the tests.

Dr. Nelson concluded that Karen's behavior was a sign she would not be an appropriate caretaker for the children. She testified that if Karen was "so unwilling and unable to engage in an evaluation to earn her child back, how could I trust her to have any ability to take care of her child once that child is in her custody." Because Karen was "focused on meeting her own ego needs and wishes" and had "little capacity to place the needs of her child ahead of her own," Dr. Nelson opined that Karen was "not capable of providing a child with a safe, consistent, predictable and nurturing home."

Dr. Nelson also conducted a bonding evaluation for Jerry. While Karen was "appropriate" and "attentive" with the child, she appeared to have little understanding of the child's developmental level. Dr. Nelson found that Jerry's bond with his foster family was stronger and healthier. She explained that "the foster family is more appropriate in understanding his needs and in being able to guide him through the development stages and help him move forward." Dr. Nelson opined it would be "catastrophic" to Jerry if he were removed from his foster parents and that he would experience "a deep and intense level of bereavement and grief."

Defendant presented no witnesses at the two-day bench trial that was conducted on June 29 and 30, 2011. On November 1, 2011, the trial judge entered an order terminating Karen's parental rights to Jay and Jerry. In an oral opinion rendered on the record on January 13, 2012, the judge found that the Division had proved its case by clear and convincing evidence. This appeal followed.

 

II.

Karen raises the following issues on appeal:

POINT I

 

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE ALL FOUR STATUTORY PRONGS OF THE BEST INTERESTS TEST.

 

A. INSTEAD OF FOCUSING ON THE LACK OF HARM TO JAY AND JERRY CAUSED BY [KAREN'S] PURPORTED UNFITNESS, AND THE LACK OF HARM TO JAY AND JERRY THAT WOULD RESULT FROM REUNIFICATION WITH [KAREN], AS REQUIRED UNDER THE FIRST AND SECOND PRONGS OF THE BEST INTERESTS TEST, THE TRIAL COURT DELIGITIMIZED [KAREN] AS A PARENT BECAUSE OF HER MENTAL HEALTH AND SUBSTANCE ABUSE ISSUES.

 

B. THE DIVISION DID NOT SATISFY ITS BURDEN TO MAKE REASONABLE REUNIFICATION EFFORTS.

 

C. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Ill., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered 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). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.

"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.

In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:

(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).]

"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).

The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that Jay and Jerry's best interests required termination of Karen's parental rights.

A.

In addressing the first statutory prong, Karen argues the Division failed to prove that Jay and Jerry's safety, health or development has been or will continue to be endangered by the parental relationship. She asserts she did not harm either child. In Jay's case, she argues Jay's uncle physically beat him and, as a result, the KLG with G.M. needed to be terminated. Karen also claims she never harmed Jerry and that the only reason the Division removed him from her care was because of her "purported lack of cooperation with the in-home service provider that was cited by [the Division], not any actual harm to the child." The record does not support these contentions.

The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348. The absence of physical abuse alone is not conclusive, because the court also must consider the potential for serious psychological harm to the child. In re Guardianship of R., 155 N.J. Super.186, 194 (App. Div. 1977).

Courts, however, need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period constitutes a harm under this standard. K.H.O., supra, 161 N.J. at 356. The fact that a parent may be morally blameless is not a sufficient reason to tip the scales in his or her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

The trial judge found that the children's safety, health and development had been endangered by Karen. She gave birth to Jay when she was only fourteen and was obviously unable to care for him at that time. She was involved with drugs when she gave birth to Jerry and, indeed, tested positive for PCP just five days after his birth. She had the opportunity to care for Jerry with the assistance of twenty-four hour homemaker services provided by the Division. However, Karen refused this assistance and barred the homemaker agency from her home. She refused to comply with drug treatment and she continued to test positive for PCP. She appeared to be under the influence of drugs at her psychological evaluations.

The "harms attributable to the biological parent include the prolonged inattention to a child's needs." In re Guardianship of B.G.S, 291 N.J. Super. 582, 592 (App. Div. 1996). Indeed, a parent's withdrawal of the solicitude, nurture and care for an extended period of time is in itself a harm that endangers the health and development of a child. K.H.O., supra, 161 N.J. at 349. Based upon the evidence produced at trial, the judge found that Karen was "significantly hostile, significantly out of touch with reality" and "unstable." She had demonstrated an "inability to deal with her drug problem."

As a result, Karen has never been able to care for either child. The experts agreed that she could not provide the children with a safe, nurturing home. She continues, in spite of all the evidence to the contrary, to insist that she does not have a drug problem. Thus, there is ample evidence in the record to support the judge's conclusion that Karen's failure to assume a parental role interfered with Jay and Jerry's development and caused them harm.

In addition, Karen's own cognitive problems prevent her from safely caring for Jay and Jerry. Dr. Wells explained that Karen's cognitive capacity, lack of personal stability, and difficulties with drug treatment, "eliminate her as being a possible person to provide care for [Jay] given the nature and extent of his own needs." The judge found "it would be extremely harmful to have [Karen] be responsible to raise this child, who has at least as many, or many more, deficits than she does." Jerry is doing much better in the foster home in which he has lived for three years. However, bonding evaluations demonstrated that Jerry's foster mother is his "psychological parent" and the experts agreed he would suffer "serious and enduring emotional and psychological harm" if he was removed from his foster home.

Under these circumstances, the children's safety, health and development would be jeopardized if they were returned to Karen. Thus, the trial judge correctly held that the Division sustained its burden as to the first prong.

B.

The second statutory prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

This prong was clearly met in this case. The record shows that Karen consistently refused the offers of assistance provided by the Division. She would not let the homemaker services agency into her home to help care for Jerry. She failed to address her drug problem and continually tested positive for PCP. Based upon this evidence, the trial judge found that Karen had been "unwilling and unable" to deal with her drug abuse and had shown "no indication that this would change in the foreseeable future."

There is no merit to Karen's argument that the children were removed from her "simply because she tested poorly on a cognitive ability scale." Her cognitive issues do affect her ability to parent because she is unable to place the welfare of the children ahead of her own. More importantly, however, Karen failed to take the steps needed to address her long-term substance abuse. Karen's refusal to participate in treatment and to stop using PCP amply support the judge's finding that prong two of the statutory test had been satisfied.

C.

Karen argues the record does not support the trial judge's finding that the Division made reasonable efforts to provide adequate services and that it considered alternatives to termination. This argument also lacks merit.

The third statutory prong requires the Division to make reasonable efforts to provide services to assist a parent to correct his or her circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates on an individual basis the efforts undertaken by the Division to reunite a family. D.M.H., supra, 161 N.J. at 390. These efforts may include the encouragement of an ongoing parent-child relationship and regular visitation. Id. at 393. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.

Karen was given many opportunities to engage in, and comply with, multiple services. After Jerry was born, the Division arranged for a twenty-four hour homemaker service, which would have enabled Karen to maintain custody of her son. Just days after he was released from the hospital, however, Karen refused to permit the service agency to enter her home. She refused to attend some psychological evaluations and refused to cooperate when she did so. The Division made many referrals for drug treatment but, as the judge found, "all of those referrals have proved to be negative in that [Karen] either did not appear for the program, or went into the program, continued to use drugs, or left the program."

Karen had the opportunity to have supervised visitation with Jerry, but she often appeared late or not at all. While Karen boldly asserts "the Division failed to refer Jay for specialized services in a timely manner," she provided no evidence that the Division failed to provide either child with appropriate services. She also did not identify any relative who could provide care for either child after the KLG with G.M. had to be terminated. Thus, the record supports the judge's finding that the Division made reasonable efforts to assist Karen and there were no alternatives to the termination of her parental rights.

D.

The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108.

The ultimate determination to be made under the fourth prong 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." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).

Here, the trial judge found that termination of parental rights would not do more harm than good and concluded that terminating Karen's parental rights was in the children's best interests. There was ample evidence in the record to support this finding.

Karen argues the children could obtain "permanency" if they were returned to her care. However, the record simply does not support this claim. While Karen has had a relationship with both children, the experts agreed that they would not suffer any enduring harm if that relationship were terminated. On the other hand, Jay and Jerry would be harmed if they were returned to Karen's care.

The record supports the judge's conclusion that Karen lacks the emotional and intellectual ability to raise the children. Moreover, this deficiency is amplified by her long-standing drug problem, which she refuses to address. As the judge found, Karen's continued drug abuse will "certainly do more harm than good" to the children. Given Karen's inability and unwillingness to address her many issues, the children cannot be cared for by her and they must be afforded permanency elsewhere. Therefore, the judge properly found that their best interests would not be advanced by further delaying permanency for them.

Jay is currently in a group care home, having completed the course of therapy recommended by Dr. Wells during his placement at the residential facility. The Division's plan for him is select home adoption. Jerry has been in his foster home for three years and his foster mother is his "psychological parent." The foster family wishes to adopt him. Both children have been denied permanency for their entire lives while Karen continues to refuse treatment for, or even to acknowledge, the issues that prevent her from acting as a parent. Thus, the record in this case fully supports the judge's conclusion that termination of Karen's parental rights will not cause the children more harm than good.

Affirmed.

1 Fictional names are used to protect the privacy of the children and for ease of reference.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 The fathers of the two children are unknown and their parental rights were terminated by default in the November 1, 2011 judgment.