NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3514-10T2

A-3515-10T2

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,1

Plaintiff-Respondent,

v.

 

J.F.,

 

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.T.F. and J.M.,

Minors.

_______________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

S.M.,

 

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.T.F., J.M., S.M.M. and S.M.M.,

Minors.

_______________________________________

December 5, 2012

 

Argued October 17, 2012 - Decided

 

Before Judges Grall, Simonelli and Koblitz.

 

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Camden County, Docket No. FG-04-129-09.

 

William J. Sweeney, Designated Counsel, argued the cause for appellant J.F. (Joseph

E. Krakora, Public Defender, attorney; Mr. Sweeney, on the brief).

 

Carleen M. Steward, Designated Counsel,

argued the cause for appellant S.M.

(Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief).

 

Michelle D. Perry-Thompson, Deputy Attorney

General, argued the cause for respondent

New Jersey Division of Youth & Family Services (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Andrea R. Fonseca-Romen, Deputy Attorney General,

on the brief).

 

Damen J. Thiel, Designated Counsel, argued the cause for minors J.T.F. and J.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief).

 

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minors S.M.M. and S.M.M. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

PER CURIAM

S.M. and J.F. appeal judgments terminating their respective parental rights, and we have consolidated their separate appeals. Because the trial court's findings are adequately supported by the record and not clearly mistaken, we affirm.

Using fictitious names, the children whose best interests are at issue are: 1) Sam, born in May 1997; 2) Sue, born in April 1999; 3) John, born in November 2008; and 4) Judy, born in March 2010. S.M. is the mother of all four, and J.F. is the father of John and Judy. The fathers of Sam and Sue have surrendered their respective parental rights and are not participating in this appeal.

The trial court concluded that termination of S.M.'s and J.F.'s respective parental rights to these children is in their best interests. The Division of Youth and Family Services (the Division) urges us to affirm those judgments. While the law guardian for Sam and Sue argues that termination of S.M.'s parental rights will do them more harm than good, the law guardian for John and Judy contends that termination of S.M.'s and J.F.'s rights to the younger children is appropriate.

I

S.M. and J.F. have another child, Jane, who was born in November 2005 and, along with Sam and Sue, removed from S.M.'s custody in September 2006. Their respective parental rights to Jane were terminated in 2008, and that judgment has been affirmed. N.J. Div. of Youth & Family Servs. v. S.M., Nos. A-6314-07 & A-1483-08 (App. Div. Sept. 4, 2009)(slip op. at 36), certif. denied, 200 N.J. 550 (2009). Although the Division also sought termination of S.M.'s parental rights to Sam and Sue in that proceeding, the judge concluded that it was not in the children's best interests at that time. He ordered the Division to continue to provide services to reunify S.M. with Sam and Sue.

Because Sam and Sue have been in the custody and care of the Division since they and Jane were removed from S.M.'s custody in September 2006, it is necessary to begin our discussion with facts addressed in our prior opinion. When the children were removed, J.F. was not living with S.M. Neither John nor Judy had been born.

Sam was nine, Sue was seven and Jane was one, when they were removed from S.M.'s custody. The removal followed the Division's investigation of a report that Sam was not attending school and S.M. was homeless. After investigating the report, the Division concluded:

Mother [S.M.] has no stable housing. She stays with various relatives until they ask her to leave due to her heavy drinking. Mother left baby [Jane] at a friend[']s house and forgot where she left [the] child due to heavy drinking. Mother left [Sam] with an aunt and made no plans to return for him or care for him. None of the children are enrolled in school.

 

The Division found additional evidence of neglect after the removal. Jane had an ear infection and a genital rash, and Sam and Sue had serious tooth decay. Sam and Sue also had serious mental disorders and resulting dangerous behavior, but those harms were detected in the months and years that followed their removal.

After the children were removed from her custody, S.M. admitted her alcoholism but denied abuse of any other substances. By October 2006, she was diagnosed as having an alcohol dependence disorder and found to exhibit symptoms of depression and behavioral problems. Counseling with aftercare and training to develop S.M.'s parenting skills were recommended.

The Division arranged for S.M.'s enrollment in an intensive outpatient program for substance abuse, but S.M. was dismissed for lack of attendance. Subsequently, S.M. missed intake appointments, and the Division arranged for her to participate in another program.

In January 2007, S.M. admitted that she had abused and neglected the children and was presently unable to serve as a parent. Eventually, S.M. also admitted use of PCP as well as alcohol.

Despite her admissions, S.M. did not attend a substance abuse program until the court approved the Division's plan to terminate her parental rights in September 2007. She then entered a twenty-eight day inpatient program, which she completed in November 2007. S.M. did well in that structured program, earning excellent ratings for attendance, participation and progress and never testing positive for any substance. For a time, she continued to do well in a highly structured aftercare program arranged by the Division.

The trial on termination of S.M.'s parental rights to Jane, Sue and Sam and J.F.'s parental rights to Jane was held in May 2008. The Division's experts were of the opinion that in light of S.M.'s long-standing addiction, her period of abstinence was too brief to permit safe return of the children. In addition, S.M. had not found a home for her children.

Similarly, J.F. was unable or unwilling to take responsibility for the care of his child, Jane. He was incarcerated for much of the period between the removal of the children from S.M.'s custody and the first termination trial. When he was at large, his failure to comply with conditions of his release resulted in his reincarceration. Following his release, he committed a new crime, failing to register as required by Megan's Law, and that conviction led to another term of incarceration. When released in March 2008, J.F. visited Jane, but he never offered to care for her, obtained employment or secured housing that would permit him to act as her parent. Instead, J.F. opted to live with his mother in an age-restricted development where he could not make a home for Jane.

By May 2008, Jane had bonded with an adult who was able and willing to care for her. According to the Division's expert, Jane viewed the foster mother who had cared for her since September 2006 as her psychological parent and would have been harmed if that bond was severed. Moreover, Jane's foster mother was interested in adopting her.

In contrast, neither Sam nor Sue had developed a bond with an adult willing to care for them. As noted above, S.M. was unable to care for them and their respective fathers surrendered parental rights. Because of Sam's difficult and dangerous behavior, he was taken from the home of an aunt who was caring for him and admitted to a psychiatric facility within months of his removal. Between his discharge from that facility and the May 2008 trial, Sam was placed in a series of foster homes, but none of those placements were successful.

Sam's disruptive behavior led the Division to have his mental and emotional needs assessed. A psychologist diagnosed him as having learning, conduct and intermittent explosive disorders. In that expert's opinion, Sam needed a residential placement outside of a home in a facility equipped to meet Sam's needs for medication, structure, counseling, anger management and education.

The severity and dangerousness of Sam's conduct was demonstrated when he was taken for a psychiatric evaluation recommended by the psychologist. That day, Sam had an outburst that included kicking a Division worker, running onto a four-lane road and throwing rocks at passing cars. During the evaluation, Sam admitted that he attacked his foster parents' grandson and disclosed that S.M. hit him and his sister Sue with a belt. The psychiatrist added post-traumatic stress disorder to Sam's list of diagnoses.

Sue's emotional and mental condition was not evaluated until June 2007. At that time, she was leaving her foster home without permission and refusing to bathe. She also had placed another child in the home in danger. Consequently, in August 2007, Sue was placed in a psychiatric unit for children at Kennedy Behavioral Hospital. There, a psychiatrist diagnosed her as having oppositional defiant disorder and recommended placement in a long-term psychiatric treatment facility. In accordance with that recommendation, Sue was placed in an inpatient program. On discharge, she was placed in a foster home but was moved to a group home when that placement failed.

On the foregoing evidence, the judge who presided over the first trial terminated S.M.'s and J.F.'s parental rights to Jane, but he concluded that Sam's and Sue's poor prospects for adoption and attachment to S.M. warranted an order requiring the Division to make additional efforts to reunite them with their mother. The court distinguished Jane from Sam and Sue on the ground that her foster mother, whom Jane viewed as her psychological parent, was interested in adoption. As noted at the outset of this opinion, the judgments terminating S.M.'s and J.F.'s parental rights to Jane have been affirmed.

Despite the opportunity for reunification presented by the judge's order and the fact that she was expecting another child, S.M. continued to abuse substances and failed to secure housing. In November 2008, S.M. gave birth to John, who is J.F.'s son. Prior to John's birth, S.M. did not seek prenatal care, and when John was born both he and S.M. tested positive for PCP. J.F. was again incarcerated when John was born. Consequently, the trial court granted the Division leave to assume the custody and care of John. Meanwhile, Sam and Sue were left to continue in the Division's custody for a third year.

In March 2009, the trial court, a different judge than the one who presided over the first trial, determined that S.M. had abused and neglected John. The court directed the Division to continue services. In June, the Division filed a new complaint seeking termination of S.M.'s parental rights to Sam and Sue.

As the court directed, the Division continued to provide S.M. with services to reunite her with the children, including substance abuse treatment and $2400 to obtain an apartment. Although S.M. delayed treatment by missing several intake appointments, she was participating when the court ordered the Division to help her with housing. Accordingly, in July 2009, the court returned John to S.M.'s custody.

By that time, J.F. had finally submitted to a drug screen and tested positive for PCP. Consequently, the court barred him from living with his family.

S.M.'s recovery and custody of John was short-lived. By the end of July, S.M. tested positive for PCP, ecstasy and amphetamines. Consequently, the court returned John to the Division's custody and care in August 2009.

After John's second removal, S.M. complied with services. She completed two substance abuse programs, one in 2009 and another in March 2010. S.M. also participated in a special visitation program.

In March 2010, S.M., who had not disclosed a new pregnancy or sought prenatal care, gave birth to Judy. Judy was also born of S.M.'s relationship with J.F. Unlike her brother John, Judy did not have PCP in her system. The court placed Judy in the custody of the Division for several reasons. S.M.'s and J.F.'s parental rights to Jane had been terminated, and Judy's brother, John, and her half-siblings, Sam and Sue, were in the Division's custody and care.

In May 2010, S.M. again tested positive for PCP. Nevertheless, the court continued ordering and the Division continued providing services that S.M. rejected . For example, because S.M. was unwilling to lose her apartment or her job with Taco Bell, she refused to participate in an inpatient treatment. Undeterred, the Division responded by offering her a new outpatient program. S.M. also refused to participate in that program.

Between entry of the judgment terminating his parental rights to Jane and August 2010, J.F. had little contact with John and Judy and did not take advantage of services the Division offered him when he was not incarcerated. After John's birth, J.F. missed several appointments for substance abuse evaluations. Once enrolled in treatment and parenting classes, J.F. was unavailable to complete either program due to additional incarcerations. When J.F. was released and available after 2009, he did not seek or complete services but he did attend visitations. Generally, the few samples that J.F. submitted for drug testing were positive.

In August 2010, the Division filed an amended complaint seeking termination of S.M.'s and J.F.'s parental rights to John and Judy as well as S.M.'s parental rights to Sam and Sue.

The second termination trial was held on January 24 and 25, 2011. At that time, John and Judy were living in separate homes with foster parents who had established bonds with the child in their care and were interested in adoption. The Division's bonding expert was of the opinion that both John and Judy would endure significant harm if they were removed from their respective foster homes but would not suffer any significant consequence if their ambivalent and insecure bonds with their parents were severed.

J.F.'s expert, a clinical psychologist who evaluated him and his bond with his children, was of the opinion that John and Judy viewed him as a "friendly person" but not a psychological parent. She noted that J.F.'s behavior with the children was appropriate and that he showed all indications of being capable of parenting. While the expert "had the sense that he probably has the abilities" to be a psychological parent to his children, she admitted that any opinion she would express on that point would be speculation. J.F.'s expert also acknowledged that J.F. could not parent John or Judy unless he avoided arrest, had job training and had help with housing and child care. Because the expert did not see John and Judy with the respective foster parents, she expressed no opinion on their relationship or whether the children would endure harm if removed from those homes.

Neither Sam nor Sue were residing with a foster family at the time of trial. Both children expressed their opposition to termination of S.M.'s parental rights and adoption, and both children continued to suffer from the serious disorders evidenced by their disruptive and aggressive behavior.

As a consequence of his difficulties after the first trial, Sam was admitted to a mental health ward in October 2008 and released from that hospital to a facility for special mental health treatment in Pennsylvania. Between his release from treatment and the second trial, Sam had twelve different placements, mostly in group homes. Sam had been with one foster family that was interested in adopting him for several months, but when Sam learned about their interest in adoption he ran away. Since then he has been in a residential facility. Sam's counselor reports that on Sam's "tough" days he is restrained to prevent him from leaving the facility.

Sue has also been unable to remain in a single placement. As with her brother, her disorders have led to hospitalization and removal from foster and group homes. When the topic of adoption was raised by a family that she had lived with for eighteen months, Sue acted out and was placed in a residential facility where she could receive a higher level of care.

Sue has announced her intention to act up rather than be adopted. Sam has consistently opposed adoption, but he did indicate that he would live with the foster family that formerly was interested in adopting him if there was no one in his own family who would take him in.

Despite Sam's and Sue's resistance to adoption and their apparent efforts to sabotage placements, Dr. Chester E. Sigafoos, the Division's expert, found the bond between the children and S.M. to be superficial, insecure and ambivalent. He described in detail the observations that led him to reach that conclusion things such as periods of silence during the session, the children's avoidance of interaction with their mother by focusing on others, and their indifference on leaving her company. With respect to S.M., he noted her lack of attention to the children and lack of interest in communicating with them, even when Sue tried to engage S.M. in a conversation about ear piercing.

Notably, Dr. Sigafoos had seen the children and S.M. numerous times between September 2006 and the second trial. In his opinion, testing and interviews showed that S.M.'s ability to function as a parent had declined and her cognitive disorder had worsened. Sam and Sue had made no marked progress, and the bonds between them and S.M. had weakened.

Dr. Sigafoos concluded that both Sam and Sue tried to sabotage placements and were likely to continue that pattern with a good chance of success. He recognized the possibility that these children would remain in residential placements until they reached the age of majority. Nevertheless, in his opinion termination of S.M.'s parental rights would not do more harm than good.

Recognizing that S.M. was unable to care for the children's special needs, Dr. Sigafoos explained that Sam wanted to return to his mother because she is permissive and he would continue to act out to achieve that result while he thought it was possible. In Sue's case, the doctor's opinion was that she had a fear of abandonment because she did not have someone she could go back to. He concluded that nothing other than development of a family relationship would alleviate that harm and provide a chance for permanency.

Dr. Sigafoos acknowledged that Sam and Sue would need a family that is "quite special" to achieve permanency and that neither child was likely to understand what permanency is if they had it. He addressed the pros and cons of termination. In his view, the only benefit to be gained if S.M.'s parental rights were not terminated was that the children's connection "to the biological part of their family would persist." But, in the doctor's opinion, that connection was causing them more harm by precluding them from addressing their own problems.

Dr. Sigafoos gave the following summary of his reasons for believing that continued contact with S.M. and long-term foster care would have more cons than pros.

That's where the cons come in. Because at some point in time somebody has to make a decision that's going to be in the best interest, that's going to say, "Okay, we've tried this. And we've tried it over and over again and it doesn't work. The same thing happens. Mom relapses, the kids act out, they get all removed and then the whole thing starts over again." All you're doing is replaying this wheel over, and over, and over.

So, the way to fix it is to break the wheel and start afresh. And the only way you're going to do that is starting without mom. Try to find some sort of a placement that these kids are going to be able to connect to. And try to go down to the very basics with them and then take it from there. . . .

Dr. Sigafoos acknowledged that there was a risk in termination for Sam, but in his opinion maintaining S.M.'s parental rights would be even worse because Sam would continue his dysfunctional behaviors.

II

 

The law governing termination of parental rights is well-settled. The standards are codified and set forth in a four-prong test. N.J.S.A. 30:4C-15.1a(1)-(4). Termination is permissible only if the Division presents 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.

 

[Ibid.]

 

The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

Our review of the trial court's application of the facts of the case to these standards is limited. We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). And, even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went 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) (citations omitted).

Judge Melendez, who presided over the second trial, concluded that all four prongs of the best interests standards were established warranting termination of S.M.'s parental rights to Sam, Sue, John and Judy and J.F.'s parental rights to John and Judy. Because her findings of fact are adequately supported by the record and her conclusions about the implications of those facts are not clearly mistaken, we affirm. In fact, we affirm substantially for the reasons stated in the judge's written opinion of February 9, 2011 as amplified here.2

In determining that S.M. and J.F. had and would continue to endanger the children's safety, health or development, Judge Melendez found that neither parent had been able to contribute care for and nurture their children or meet their basic needs for an extended period of time. Since September 2006, S.M.'s unsuccessful struggle with substance abuse and J.F.'s serial incarcerations had and continued to prevent them from serving as caregivers. "A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. From September 2006 until the time of trial, both failed "to provide even minimal parenting." Ibid.

The judge was also clearly convinced that the Division established that both parents remained unwilling or unable to eliminate the harm by providing a safe and stable home. In that respect, Judge Melendez relied on S.M.'s history of relapse and unwillingness to accept another course of inpatient treatment as well as the expert evidence that she continued to abuse substances even though that conduct was exacerbating her cognitive disorders and capacity to function in her own daily life.

With respect to J.F.'s unwillingness and inability to care for his children, Judge Melendez recognized that his incarceration required consideration of the circumstances that led to his confinement as well as the nature of his relationship with his children prior to his incarceration and his efforts to maintain contact with them. In re Adoption of Children by L.A.S., 134 N.J. 127, 136-43 (1993). She concluded that his failure to contact or inquire about his children between September 2010 and the second trial, his obvious inability to avoid reincarceration and his positive drug tests demonstrated that he was also unable or unwilling to eliminate the harm he was causing his children by being unavailable. Notably, even J.F.'s expert recognized that J.F.'s inability to avoid serial incarcerations was a problem that was critical for him to address before attempting to provide a home for his children. After all, several of his incarcerations were a product of his inability to follow the conditions of his release and there was no evidence that he had developed a relationship with the children by the time of trial that could be fostered or that there was a possibility that he would be able or available to care for them in the near future. See L.A.S., supra, 134 N.J. at 139 (recognizing the importance of a relationship with one's children prior to incarceration); N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 243 (App. Div. 2010) (considering the significance of the unlikelihood that the father would be available to parent in the near future), certif. denied, 205 N.J. 519 (2011).

The judge also determined that the record clearly and convincingly established that the Division made reasonable efforts to provide services to help these parents correct the circumstances which led to the children's placement outside the home and considered alternatives to termination of parental rights. The judge's findings and conclusions on this point are set forth on pages 51 through 56 of her written opinion. The Division's efforts are also discussed above. The record establishes that the Division's efforts were more than reasonable under the circumstances.

S.M. contends that the judge gave inadequate consideration to alternatives short of termination of her parental rights. But she points only to the Division's failure to complete an investigation of a relative and a family friend prior to trial. It is clear, however, that neither of those persons qualified for the Kinship Legal Guardianship program because they had not cared for the children. N.J.S.A. 3B:12A-5b(10). The law guardian for Sam and Sue, whose argument focuses solely on the balance of harm and good that will come from the fourth prong, does not point to any alternative to termination the judge or Division overlooked.

Both parents argue that the court erred in concluding that termination of their respective parental rights will not do more harm than good to John and Judy. We have considered their arguments on this point in light of the record and found them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The judge's determination on this issue is based on findings of fact that are adequately supported by the Division's expert testimony. R. 2:11-3(e)(1)(A).

The more difficult question is whether termination of S.M.'s parental rights will do more harm than good to Sam and Sue. S.M. and the law guardian for Sam and Sue argue that Judge Melendez erred in concluding that it will not.3

Judge Melendez relied on Dr. Sigafoos's testimony and her determination, well-supported by the record, that as long as S.M. remained in the lives of these children they would continue to believe that return to her care was an option and sabotage their chances for normal lives with caring adults. The judge relied on a case in which the Supreme Court recognized that "termination of parental rights must precede the permanency plan" in some cases where a child might not be adoptable at the time of trial. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986). Recognizing that Sam's and Sue's prospects for adoption were not good, the judge concluded: "If parental rights are not terminated, the fate of these two children will be to languish in foster care until they reach the age of majority." She determined that this alternative would most certainly do more harm than good because S.M. is not an option for them. As Dr. Sigafoos explained, aside from adoption, the connection with S.M. is not only a barrier to permanency but also to helping Sam and Sue deal with their disorders. While the question was close, the judge's findings were supported by the record and her determination that severance of their ambivalent and insecure bond with S.M. would not do more harm than good clearly was not so wide of the mark as to indicate a mistake was made.

Affirmed.

 

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families. The reorganization includes the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 The opinion is mistakenly dated February 9, 2010.

3 Relying on the law of the case doctrine, the law guardian also contends that Judge Melendez's decision is in conflict with the decision made by the judge at the conclusion of the first trial. We reject that argument because the doctrine is inapplicable here. It applies "when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue." Lombardi v. Masso, 207 N.J. 517, 539 (2011). Here, nearly three years passed between entry of the judgment in the first and second trials and the relevant facts and circumstances had changed. S.M. had begun to refuse treatment and continued to use substances that not only lessened her capacity to care for herself and the children but also weakened her bond with Sam and Sue. In the meantime, the children's need for specialized care and change had become more evident. In short, the issues were not identical.