NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

T.A.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.A.S.,

A minor.

____________________________________________________________

October 29, 2013

Submitted September 17, 2013 Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-136-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. 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 minor M.A.S. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

When the State seeks to terminate parental rights, the Division of Youth and Family Services (the Division)1 must prove by clear and convincing evidence each of the following:

(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 [D]ivision 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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

Following the trial in this case, now-retired Judge Octavia Melendez concluded that the Division had proven all four of the statutory standards and entered an order terminating the parental rights of defendant, T.A. (Theresa), with regard to her daughter, M.A.S. (Margaret).2 Margaret's father, M.S., was a defendant in the guardianship litigation, and his parental rights were also terminated. He has not filed an appeal.

Before us, Theresa does not challenge Judge Melendez's findings and conclusions as to prong one of the statutory test. However, she contends that the Division failed to prove prongs two, three and four by clear and convincing evidence. She also argues that Judge Melendez mistakenly exercised her discretion by not interviewing Margaret, as permitted by Rule 5:8-6.

The Law Guardian concedes that the evidence was sufficient as to prongs one, two and three, but contends reversal is necessary because the evidence did not support the judge's conclusions regarding prong four. The Division argues that the evidence supported the judge's conclusions as to each of the statutory prongs and urges us to affirm the order.3

We set forth some of the well-known principles that guide our review. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the factual findings of the trial judge, who has "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). Because of "the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" which are evaluated by application of the four standards contained in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The four prongs require a fact-sensitive analysis, and "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." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005)) (internal quotation marks omitted).

We have considered the arguments raised by defendant and the Law Guardian in light of the record and applicable legal standards already cited. We affirm substantially for the reasons set forth in Judge Melendez's comprehensive written opinion.

I.

We briefly detail Judge Melendez's factual findings which were amply supported by the credible evidence adduced at trial. Margaret was born in December 2003, and the Division first came into contact with Theresa and Margaret in August 2007 after receiving a referral regarding Theresa's drug use. Theresa admitted using prescription drugs and smoking marijuana while Margaret slept. The Division opened a case file and attempted to provide services. Shortly thereafter, Theresa and Margaret moved to Pennsylvania, but returned to live in New Jersey in April 2010. The Division re-opened its case.

Because of Theresa's inability to provide stable housing, Margaret missed many days of school. In addition, Margaret told her mother that she had been sexual molested by a boy while living in Pennsylvania. Theresa reported the incident to the Division, which found the allegations to be unsubstantiated. In August, however, the Division received another referral indicating that Margaret had been sexually assaulted by an eight-year old boy at the shelter where she and Theresa were staying. Although no criminal charges resulted, the Division had Margaret evaluated and counseling was recommended.

On October 18, the Division received another referral alleging that Theresa and Margaret had not returned to the Center for Family Services' Mother and Child program, where they had been placed. The Division's investigation revealed that Theresa had gotten into a physical altercation, and Margaret tried to intervene.

Theresa completed a substance abuse evaluation in April and tested positive for marijuana. She was referred for treatment in July. On December 7, 2010, however, the Division received another referral claiming Theresa was abusing marijuana, Xanax, and Percocet. Her home evidenced "a strong stench of marijuana," and Theresa claimed she had smoked marijuana in the backyard earlier that day. She also told the caseworker that she had a prescription for Percocet and Xanax; however, she acknowledged having taken an entire month's supply of medication over the weekend. The Division effected a Dodd removal,4 and Margaret was placed in foster care. On December 10, 2010, the Division was granted care, custody, and supervision of Margaret.

Margaret was placed in a foster home but needed to be removed after she placed a blanket over the face of her foster mother's newborn baby. Within days of being placed in another foster home, Margaret was admitted to Kennedy Memorial Hospital due to suicidal and homicidal ideations. She was diagnosed with psychosis and posttraumatic stress disorder as a result of the sexual assault incident; a later psychological evaluation diagnosed her as suffering from the early onset of mental illness. Margaret was placed in a therapeutic mentor home and provided with weekly therapy and bi-weekly medication monitoring.

Although Theresa supplied the names of seven individuals as possible placement options, each was ruled out by the Division or indicated an unwillingness to be Margaret's caregiver. Theresa named a friend, E.P., as another possible placement resource, and the Division asked its expert, Dr. Linda R. Jeffrey, Ph.D., a psychologist, to evaluate E.P. Dr. Jeffrey concluded that E.P.'s defensive response score to the questions posed made her an unacceptable candidate for placement.

Theresa was diagnosed with poly-substance dependence in early full remission and borderline personality disorder. Her compliance with services provided by the Division was sporadic at best. Referred for individual and group counseling in December 2011, she was discharged for non-compliance in March 2012. The same month, Theresa failed to attend an intake appointment for substance abuse treatment and tested positive for PCP. In June, Theresa was discharged from substance abuse counseling at Genesis and discharged from counseling at My Father's House due to non-attendance.

Judge Melendez relied upon the expert trial testimony of Dr. Jeffrey, who had evaluated Theresa and Margaret, conducted bonding evaluations between Theresa and Margaret and Margaret and her foster mother, and was the Division's sole witness at trial. Dr. Jeffrey concluded that, because of her significant unresolved substance dependence and adjustment and personality disorders, Theresa was unable to provide a minimum level of safe parenting for Margaret. Dr. Jeffrey noted that this was particularly so in light of Margaret's own psychological problems. Additionally, the child had become extremely "parentified," with a very strong concern for her mother's well-being.

Judge Melendez also accepted Dr. Jeffrey's conclusions drawn from the bonding evaluations. Although there was an affectionate tie between Theresa and Margaret, it was more like a friendship than an appropriate parent-child relationship. If this insecure attachment were severed, Jeffrey believed Margaret would feel a loss, but the harm would not be severe and enduring. To the contrary, Jeffrey believed Margaret was securely attached to her foster mother. Disturbing that relationship would place Margaret in "a very difficult emotional state," and severing the ties Margaret formed with her foster mother would cause the child serious and enduring harm.

The Law Guardian called two Division caseworkers, Christine Procida and Dawn Hoyle, as witnesses. Judge Melendez found them both to be credible. Essentially, both testified that Theresa and Margaret shared an affectionate relationship. Theresa failed to appear at trial and no witnesses were called on her behalf.

II.

A.

Theresa contends that Judge Melendez failed to "give weight to evidence that [she] showed progress in her recovery efforts for a significant length of time," and, therefore, it was error to conclude that the Division proved Theresa was unable or unwilling to eliminate the harm facing Margaret. See N.J.S.A. 30:4C-15.1(a)(2). Theresa also contends that the Division failed to prove prong three by clear and convincing evidence because the Division failed to "find [Theresa] appropriate substance abuse treatment . . . ." These arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following.

The second prong "relates to parental unfitness," which may be established by demonstrating that (1) "the parent is 'unwilling or unable to eliminate the harm'" or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship ofJ.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). We also have noted that the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("[T]he . . . statute[] reflect[s] 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).

While Theresa's drug screens were frequently negative during the early stages of the litigation, the record does not demonstrate that she made any meaningful progress in addressing her intractable drug dependency. Rather, the record fully supports Judge Melendez's determination that Theresa was repeatedly discharged from various programs for non-compliance, and, during the period that immediately preceded trial, Theresa had been discharged from at least two programs and was then not involved in any substance abuse counseling. Perhaps more importantly, the judge specifically found that any further delay in placement would cause further harm to Margaret. In short, the prong two proofs were sufficient.

The Division's obligation to provide services under the third prong "contemplates efforts that focus on reunification." K.H.O., supra, 161 N.J. at 354. But, "[t]he diligence of [the Division's] efforts . . . is not measured by their success." D.M.H. supra, 161 N.J. at 393. Ultimately, "[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that [the Division] met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div. 2006) (citing D.M.H., supra, 161 N.J.at 393), certif. denied, 192 N.J. 68 (2007). Moreover, "[e]ven if the Division ha[s] been deficient in the services offered to" a parent, reversal of the termination order is not necessarily "warranted[] because the best interests of the child controls." Id. at 621 (citation omitted).

Here, Judge Melendez detailed at length the various services and referrals made by the Division. She further found that the Division appropriately considered alternatives to placement. We find no reason to disturb the judge's conclusion that prong three was proven.

B.

Both Theresa and the Law Guardian argue that the Division failed to prove the fourth statutory prong. Both contend that Dr. Jeffrey recognized an affectionate bond between Theresa and Margaret, and that Margaret expressed a desire to be reunited with her mother. Yet, Dr. Jeffrey never asked Margaret about her preference, i.e., whether she wished to remain in her foster home or live with her mother.

Theresa supplements this general argument regarding the insufficiency of the prong four proofs with another specific contention. She argues that Judge Melendez mistakenly exercised her discretion by choosing not to interview Margaret who, by the time of trial, was more than eight years old. Theresa contends that interviewing Margaret was appropriate and necessary to ascertain the child's wishes.

The statute's fourth prong mandates a determination as to "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 crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship." N.J. Div. of Youth & Family Svcs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013) (citation omitted). The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Id. at 355.

Judge Melendez fully recognized Margaret "wishe[d] to return to [her mother's] care . . . ." She also acknowledged the child's attachment to Theresa. However, the judge credited Jeffrey's undisputed expert testimony. In short, Margaret's bond to her mother was "insecure[]," while she was "securely attached to her foster mother." Moreover, Judge Melendez recognized that Margaret's foster mother could ameliorate the loss the child might feel from severing the ties with Theresa, while Theresa was ill-equipped, given her own problems, to ameliorate the disruption in Margaret's life if she was removed from her foster home. As Judge Melendez succinctly stated: "[A]ll of the experts agree that [Margaret] needs stability and [Theresa] is unable to provide that."

We agree with Judge Melendez that this case is entirely distinguishable from E.P., supra, upon which Theresa relies. In E.P., supra, 196 N.J. at 109, the Court "confront[ed] the case of an almost thirteen-year-old, psychologically fragile girl, who ha[d] bounced around from one foster home to another, and whose only enduring emotional bond [was] with her mother." The Court concluded that the "unlikely possibility of permanency in the future" did not outweigh a "strong and supportive relationship with a natural parent." Id. at 111. Here, Margaret had a secure bond with her foster mother, who, Judge Melendez found, "truly cares and is willing to adopt her."

Undoubtedly, the decision to sever parental ties is exquisitely painful in every case. When the child, despite all of her mother's shortcomings and all the disappointment she has endured, nevertheless evidences continued affection, the decision to sever those ties may seem cold and unfeeling. However, it is beyond peradventure that an eight-year old child is not capable of deciding what is in her own best interests. Judge Melendez's conclusions regarding the fourth prong were supported by the substantial credible evidence in the record, and we will not disturb them.

Lastly, we address Theresa's argument that Judge Melendez should have exercised her discretion and interviewed Margaret pursuant to Rule 5:8-6. The Rule provides:

Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action. As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted.

[Ibid.]

The argument is unpersuasive for several reasons.

Theresa cites no authority for the proposition that the specific procedures set forth in the Rule 5:8-6 apply to Title 30 proceedings. Rule 5:12-4(b), which specifically does apply, provides:

Hearings and trials shall be conducted in private. In the child's best interests, the court may order that a child not be present at a hearing or trial unless the child's testimony is necessary for the determination of the matter. The testimony of a child may, in the court's discretion, be taken privately in chambers or under such protective orders as the court may provide.

[Ibid. (emphasis added).]

Thus, under the specific rule applicable to Title 30 proceedings, the judge is vested with the discretion to order the child's presence if her "testimony is necessary for the determination of the matter." Ibid. As we already noted, Judge Melendez was fully aware of Margaret's wish to be reunited with Theresa. Interviewing the child likely would not have adduced any critical, additional information necessary to guide Judge Melendez in reaching her difficult decision.

Additionally, although the Law Guardian frequently asserted on the record that Margaret wanted to be reunited with her mother, neither he nor Theresa's attorney ever sought to call Margaret as a witness. Nor did they request, under any circumstances, that Judge Melendez interview the child.

Affirmed.

1 Effective June 29, 2012, the Division of Youth and Family Services became the Division of Child Protection and Permanency. See L. 2012, c. 16, 28.

2 We have fictionalized the names of defendant and her daughter.

3 The Division did not address defendant's argument regarding the judge's failure to interview Margaret.

4 A "Dodd removal" is an "emergency removal of a child from the home without a court order, pursuant to the Dodd Act[.]" N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010) (citing N.J.S.A. 9:6-8.21 to -8.82).