OF YOUTH AND FAMILY SERVICES v. K.M.T. IN THE MATTER OF THE GUARDIANSHIP OF S.D.T., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2926-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

K.M.T.,

 

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.D.T., a minor.

_________________________________

February 21, 2012

 

Submitted January 11, 2012 - Decided

 

Before Judges Sapp-Peterson and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-127-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alexander W. Saingchin, Designated Counsel, on the brief).

 

JeffreyS. Chiesa,Attorney General, attorney forrespondent (LewisA. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.D.T., a minor (Todd Wilson, Designated Counsel, on the brief).

 

 

PER CURIAM

K.M.T. appeals from the trial court order terminating her parental rights to S.D.T. and granting guardianship to the Division of Youth and Family Services ("Division"). On appeal, K.M.T. urges that the trial judge's conduct during earlier abuse or neglect proceedings, as well as the judge's conduct during the guardianship trial, exhibited bias, which prejudiced her defense. K.M.T. also contends the Division failed to establish, by clear and convincing evidence, that it made reasonable efforts to assist her and that termination would not do more harm than good. We affirm.

S.D.T. is the fourth child born to K.M.T. Her parental rights to her first two children, twins born August 8, 2001, were terminated October 13, 2004. K.M.T.'s parental rights to her third child, born May 26, 2008, were terminated September 8, 2009, slightly more than one month before K.M.T. gave birth to S.D.T. on October 18, 2009. Both K.M.T. and S.D.T. tested positive for cocaine and heroin at the time of the infant's birth. The hospital contacted the Division, and a caseworker interviewed K.M.T., who admitted using heroin and cocaine. Thereafter, the Division filed an order to show cause (OTSC) seeking custody of S.D.T., which the court heard on October 22, 2009. K.M.T. did not attend the hearing. Although the Division represented that defendant had been served with the summons and verified complaint, the date and manner of service were not explained to the court. At the conclusion of the proceeding, the court entered an order (1) granting custody of S.D.T. to the Division, (2) directing the Division to refer K.M.T. for a substance abuse evaluation, and (3) ordering K.M.T. to comply with any treatment recommendations.

K.M.T. failed to attend the substance abuse evaluation as ordered and also missed two visits with S.D.T. She did not appear for the case management conference held on November 13. At the hearing, the caseworker, not under oath, explained that defendant had provided several addresses and then finally admitted to being homeless. The caseworker stated further that her only means of communication with defendant was through voicemail, but defendant no longer had any minutes remaining on her cell phone and "sometimes [defendant] returns a call, and sometimes she doesn't." However, an attorney from the Office of Parental Representation (OPR), within the Office of the Public Defender, did appear and advised the court that K.M.T. had previously been her client. The court noted that K.M.T. failed to appear at the OTSC where she could have completed an application for parental representation by OPR and that until she appeared and completed the requisite application, prior counsel was under no obligation to represent her.

The court entered an order continuing the Division's custody and once again directing K.M.T. to undergo a substance abuse evaluation. The court's order also included a recommendation that the Division consider filing a motion to be relieved of its obligation to make reasonable efforts to provide services to help K.M.T. correct the circumstances which led to S.D.T.'s removal. The Division filed the motion, which was originally scheduled to be heard in January 2010, but the Division requested an adjournment since it had been unable to locate K.M.T. or E.S., who had been identified as S.D.T.'s biological father.

The court conducted a fact-finding hearing pursuant to N.J.S.A. 9:6-8.21 to -8.73 ("Title Nine") on February 16, 2010. Neither parent appeared at the proceeding. A Division caseworker testified regarding her efforts to locate K.M.T. in advance of the hearing. Those efforts included speaking to a former boyfriend of K.M.T. who directed the worker to a laundromat where he claimed K.M.T. conducted her prostitution business. Once at the laundromat, the worker spoke with a person familiar with K.M.T. who indicated that K.M.T. had moved to Broadway and Atlantic Avenues, the location of a Chinese store. The worker, with a picture of K.M.T., went to Broadway and Atlantic Avenues in search of her, but did not see K.M.T. in the area.

The court took testimony from two Division workers, after which the court entered an order finding that it was satisfied by more than a preponderance of the evidence that S.D.T. was abused and neglected. The court cited, as evidence of abuse and neglect, the fact that K.M.T. received no prenatal care, both she and S.D.T. tested positive for drugs at the time of S.D.T.'s birth, K.M.T. admitted to using illicit drugs a few days before S.D.T.'s birth, she lacked stable housing, and there had been prior referrals involving her other children who reportedly were born with the presence of cocaine in their bodies. The court also took judicial notice of a 2009 court proceeding resulting in the termination of K.M.T.'s parental rights to another child on September 8, 2009.

After being personally served with a summons and copy of the Division's motion seeking to be relieved of the obligation to make reasonable efforts to assist her, K.M.T. failed to appear for the hearing the court conducted on March 29, 2010. At its conclusion, the court granted the Division's motion and scheduled a permanency hearing for the following month.

The permanency hearing took place on April 23, 2010. K.M.T. again failed to appear. The caseworker testified that the Division's plan for S.D.T. was termination of parental rights followed by select home adoption, and noted K.M.T. had not contacted the Division regarding S.D.T.'s well-being, nor had she requested visitation. The caseworker also advised the court that S.D.T.'s current foster parent was not interested in adopting him.

The Division filed its complaint for termination of K.M.T.'s and E.S.'s parental rights and for guardianship on June 3, 2010. The following month, both parents appeared before the court with assigned counsel. While recognizing the Division had been relieved of any obligation to make reasonable efforts to provide services to K.M.T., her attorney requested that a substance abuse evaluation be arranged by the Division. The Division did not object to this request. K.M.T. also requested visitation with S.D.T. In response to the court's inquiry as to when she last visited with S.D.T., K.M.T. indicated she had not seen him since his birth. The court responded: "The policy of this [c]ourt is that whatever parenting time is occurring at the time that the guardianship is . . . filed will continue. So, if she's seeing the child weekly, two hours, then that continues. If she's not seeing the child, that would not commence now." Defense counsel asked the court to reconsider its decision, explaining that there "may have been incarceration for some periods of time[.]" The court indicated that its "answer remains the same[,]" also adding that it was K.M.T. who chose not to see her son for ten months. Although K.M.T. told the court she had been on drugs during those months and was now "clean," the court did not order visitation. The court terminated the Title Nine litigation and ordered K.M.T. to undergo a psychological and bonding evaluation, as well as a paternity test for E.S.1 Immediately following the hearing, K.M.T. underwent a drug screen, which yielded negative results.

The next court proceeding took place on August 9, 2010. K.M.T. failed to appear, notwithstanding that she had been given notice by the court of the new date and time during the proceeding held less than one month earlier.

On September 14, 2010, K.M.T. attended a psychological and bonding evaluation with Dr. James Loving, during which she reported that she had been involved with G.D. for the past two and one-half months and viewed him as "her most important, positive, and reliable support at this point[,]" and believed he was keeping her from using drugs. She reported heavy cocaine and heroin usage prior to early July 2010, and arrests for prostitution and parole violations. Dr. Loving noted that her mental state appeared normal, though her judgment was "[h]istorically poor and impacted by chronic substance abuse." Dr. Loving opined K.M.T. posed "an extremely high risk for continued drug abuse and dependence" and "has not yet made any demonstrable progress in terms of establishing stable, independent housing or finances." Dr. Loving concluded:

Based on this evaluation, [K.M.T.] cannot be seen as ready for safe, healthy reunification now or in the foreseeable future. . . . [S]he must be seen as posing an extremely high risk for drug relapse, even after giving her credit for achieving abstinence in recent months. Despite her high motivation and other positive factors that are present at this immediate time, [K.M.T.'s] situation is extremely tenuous and high-risk. In order to serve as a safe, stable[,] full-time parent, she would first need to participate in a lengthy and intensive substance abuse treatment program. Ideally[,] in her case, this would include several months of residential programming, followed by step-down to [intensive out-patient] level care to give her continued support in the community. She would also need to participate in individual therapy, both in order to help her cope with depression and other emotional struggles, and also to build skills in terms of independence, assertiveness, and stability. Meanwhile, [K.M.T.] would need to begin building a relationship with [S.D.T.], a child who unfortunately has no relationship or attachment with her, due to her absence from his young life. Clearly these efforts would require many months (perhaps well over a year) before professionals could feel assured that [K.M.T.] is able to truly overcome her risk factors. Sadly, her prognosis for doing so (even if she is truly committed to treatment right now) is poor.

 

With respect to the bonding evaluation, Dr. Loving opined that S.D.T. was content and tolerated K.M.T. but shared "no sense of emotional attachment" to K.M.T. and "would notbe expected to suffer serious and enduring emotional harm" if their relationship ended. Dr. Loving further opined that S.D.T. would have the "best prognosis for long-term social and emotional health if he were freed for adoption[.]"

At the September 20, 2010 case management hearing, K.M.T. appeared and renewed her request for visitation, which request the court once again denied. In denying the visitation request, the court stated:

I do not change the parenting time in the middle of a guardianship proceeding. If a child is visiting with a parent[,] even [if] the Division comes in and asks to terminate, unless there's some direct harm shown to the child, I don't stop the visits.

 

On the other hand, if the parent is not visiting, I do not start visits. If there's certain parenting time that's going on, I do not increase it and I do not decrease it because at the point that we're doing a [t]ermination of [p]arental [r]ights, the focus is on the child.

The guardianship trial took place over two non-consecutive days, commencing on November 30, 2010, and concluding on December 14. K.M.T. did not appear on either day. Dr. Loving testified as to his evaluations, and Dawn Hoyle, the Division's caseworker assigned to the matter, testified as to her involvement in the case. Following the trial's conclusion, the court issued a written decision finding the Division had proved termination of K.M.T.'s parental rights was in S.D.T.'s best interest in accordance with the statutory prerequisites for termination of parental rights. N.J.S.A. 30:4C-15.1a. The present appeal followed.

The specific points raised for our consideration on appeal are as follows:

POINT I

 

THIS COURT HAS THE AUTHORITY TO REVIEW HOW JUDGE MELENDEZ' CONDUCT DURING THE TITLE NINE PROCEEDINGS MARRED THE SUBSEQUENT TITLE THIRTY ACTION (ARGUMENT NOT PRESENTED AT TRIAL LEVEL).

 

A. ALTHOUGH IT WAS NOT ARGUED AT TRIAL, THIS COURT MUST EXERCISE ITS DISCRETION TO REVIEW JUDGE MELENDEZ' BIAS IN THE INTERESTS OF JUSTICE.

 

B. THIS COURT HAS THE AUTHORITY TO REVIEW THE CONDUCT OF A TITLE NINE PROCEEDING IN THIS TITLE THIRTY APPEAL.

 

POINT II

 

JUDGE MELENDEZ' CONDUCT EXHIBITED A BIAS AGAINST THE DEFENDANT PREJUDICING HER DEFENSE AND WARRANTING A REMAND.

 

 

POINT III

 

[THE DIVISION] FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE PRONGS THREE AND FOUR OF THE BEST INTERESTS STANDARD.

 

A. THE TRIAL COURT'S DECISION TO DENY SERVICES AND VISITATIONS IS CONTRARY TO OUR STATE'S GOAL OF FAMILY REUNIFICATION.

 

i) [THE DIVISION'S] FAILURE TO PROVIDE SERVICES HINDERED THE DEFENDANT'S ABILITY TO REHABILITATE HERSELF.

 

ii) JUDGE MELENDEZ' VISITATION POLICY DEFIES NEW JERSEY SUPREME COURT PRECEDENT.

 

B. THE TRIAL COURT'S REPEATED DENIALS OF VISITATION PREDETERMINED THE LACK OF A BOND BETWEEN THE DEFENDANT AND HER CHILD.

 

i) JUDGE MELENDEZ' VISITATION POLICY RESULTED IN A STRANGER RELATIONSHIP BETWEEN THE DEFENDANT AND HER CHILD.

 

ii) MORE HARM THAN GOOD WILL NOT RESULT IF THE DEFENDANT'S PARENTAL RIGHTS ARE REINSTATED.

 

Parents have a fundamental right to raise their children under the Constitution. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is mitigated 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). Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard first enunciated by the Court in A.W. and now codified in N.J.S.A. 30:4C-15.1a.

N.J.S.A. 30:4C-15.1a provides that termination of parental

rights is in the best interests of the child when:

(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.

 

The Division has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). The four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

Because K.M.T. only challenges the court's findings as to the third and fourth prongs of the "best interests" test, we focus our discussion upon these two prongs. In doing so, we are satisfied the record establishes that the Division proved these two prongs by clear and convincing evidence.

The record establishes, as the court found, that the Division offered K.M.T. "a plethora of services geared towards reunification" and had been doing so for several years in relation to its custody and supervision of her three other children prior to initiating proceedings to terminate her parental rights to those children. Those services included psychiatric and psychological evaluations, substance abuse evaluations and treatment, and supervised parenting time. K.M.T. presented no proof to rebut this evidence. The court noted that "[a]lthough the Division offered [K.M.T.] ample opportunity to become involved in different services, there was no compliance on her part." Moreover, the court found that there were no alternatives to termination that could be considered, as K.M.T. was unable to provide contact information for "relative placement options" and the biological father of S.D.T. was unknown.

We additionally conclude the court exhibited no bias towards K.M.T. when it suggested to the Division that it file a motion seeking relief from its obligation to provide reasonable services to K.M.T. N.J.S.A. 30:4C-11.3 sets forth exceptions to the Division's obligation to make reasonable efforts to provide services to a parent. Those exceptions include when "[t]he rights of the parent to another of the parent's children have been involuntarily terminated." N.J.S.A. 30:4C-11.3c. K.M.T.'s parental rights to her first two children were terminated in 2004, while her parental rights to her third child were terminated in September 2009, slightly more than one month before S.D.T.'s birth. K.M.T. failed to appear before the court at the initial return date of the OTSC and case management hearing conducted in November 2009.

While it is unclear whether she had notice of these proceedings, it is undisputed that when K.M.T. was released from the hospital following S.D.T.'s birth, she was not permitted to take S.D.T. with her. Given her past history of involvement with the Division, any concern for S.D.T.'s welfare should have manifested itself, at the very least, with inquiries to the Division regarding his status. Nothing in the record indicates she made any inquiries to the Division at that time.

Under these circumstances, the court did not exhibit any bias in suggesting that the Division file a motion to be relieved of its statutory obligation under the third prong to make reasonable efforts to provide services to K.M.T. Finally, the motion was not filed until January and not considered by the court until March. K.M.T. was aware that S.D.T. had been removed from her custody, and the record reveals no effort on her part during the months following the court's suggestion to seek any assistance from the Division.

Although relieved of any obligation to make reasonable efforts to provide services to K.M.T., when she finally appeared in court ten months after the Division had effectuated its emergency removal of S.D.T., the Division agreed to schedule a substance abuse evaluation, which K.M.T. had requested. At that time, K.M.T. also requested visitation. The court announced its policy to essentially maintain the status quo once termination proceedings had commenced and stated that to the extent there had been no visitation leading up to commencement of the termination proceedings, the court would not begin visitation at that time.

The question of visitation is ultimately left to the sound discretion of the court, pursuant to its equity and parens patriae jurisdiction. In re Adoption of a Child by W.P., 163 N.J. 158, 195 (2000). As such, we ordinarily accord great deference to the discretionary decisions of Family Part judges, N.J. Div. of Youth & Family Servs. v. R.M., 411 N.J. Super. 467, 474 (App. Div.), certif. denied, 203 N.J. 439 (2010), provided the evidence on which the decision is based is "adequate, substantial and credible." In Re Matter of A., 277 N.J. Super. 454, 472 (App. Div. 1994) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

N.J.A.C. 10:122D-1.15 provides direction to the Division in listing circumstances under which visitation with children who have been placed out of the home may be "reduced," and includes those instances where the "parent chronically misses scheduled visits despite the Division's efforts to advise of the importance of attending visits for the parent and the child[.]" Although it is unclear whether she had notice of the scheduled visits, the record establishes that K.M.T. missed the first two scheduled visits with S.D.T. following his birth and emergency removal. Thereafter, K.M.T.'s whereabouts remained unknown to the Division, despite its best efforts to locate her. It was not until March 2010 that contact was made, when the Division was able to serve her with a summons and motion to be relieved of its duty to make reasonable efforts to provide services to her. K.M.T., however, failed to appear for that proceeding. Nor did she contact the Division seeking visitation at that time. Instead, it was not until July 2010, one month after the Division filed its complaint for guardianship and termination of parental rights, that she appeared before the court and requested visitation.

Nothing in the statute or in the regulation that permits "reducing" visitation supports the trial court's policy of maintaining the status quo once termination proceedings have been initiated. When balanced against the fundamental right of parents to raise their children and the Legislature's goal of reunification unless reunification is not in a child's best interest, we reject the trial court's apparent blanket policy to deny visitation solely because there had been no visitation at the time termination proceedings commenced. We recognize there may be circumstances where prohibiting visitation is in the best interest of a child. When these circumstances arise, however, the trial court's decision to prohibit visitation must be based upon the particular facts before the court. That was not done here and we are therefore persuaded the court mistakenly exercised its discretion in denying visitation based solely upon its policy. We nonetheless conclude that the error was harmless.

K.M.T.'s parental rights were terminated five months after the denial of visitation. She underwent a psychological and bonding evaluation during this period, the results of which were credited by the court in its findings. Dr. Loving found it was unlikely in the foreseeable future that K.M.T. could provide a safe and healthy reunification environment for S.D.T. He opined that the risk of her experiencing drug relapse was high, requiring lengthy and intensive substance abuse treatment. Thus, even with supervised visitation, it is unlikely that the results of the bonding evaluation would have been different or that termination would not have occurred.

Turning to the fourth prong, citing Dr. Loving's evaluations, the court found it "clear . . . that termination of parental rights will not do more harm than good in this case" and concluded that, as S.D.T. was currently in a pre-adoptive home, "[o]nly by terminating [K.M.T.'s] parental rights can this home become his permanent home." The five-month period between the court's refusal to permit visitation and termination of her parental rights was not what created the "stranger" relationship between K.M.T. and S.D.T. Rather, it was the more than nine months that K.M.T. chose not to pursue any visitation with S.D.T. which spawned the estrangement. With absolutely no contact with S.D.T. following his discharge from the hospital after his birth, K.M.T. could not reasonably have expected to have developed a meaningful relationship with S.D.T. during the five months leading up to the termination trial that would have made a difference in the outcome of the proceedings.

As such, we affirm the trial court's termination of K.M.T.'s parental rights.

A

lthough not expressly addressed in this opinion, we have considered other issues raised by defendant and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 The paternity test was conducted on September 21 and the results indicated that E.S. was not S.D.T.'s biological father. The complaint was subsequently dismissed as to him.