NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.C.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4124-11T1

A-4191-11T1

NEW JERSEY DIVISION OF YOUTH1

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.C.M. and N.C.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.C. AND A.A.C., minors.

__________________________________

June 5, 2013

Submitted May 20, 2013 Decided

Before Judges Parrillo, Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-65-10.

Joseph E. Krakora, Public Defender, attorney for appellant J.C.M. (Howard Danzig, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant N.C. (Peter Neely Milligan, 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 the minors (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

Defendants N.C. (Nora) and J.C.M. (John) appeal from the termination of their parental rights to two of their three children, J.C. (James) and A.A.C. (Alice).2 Nora and John assert that the judge erred by terminating their rights because the Division failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We affirm.

In 1988, the Division became involved with this family when it began receiving referrals regarding the cleanliness of the family home and the deficient school attendance of Nora's two older children, both now adults. Between 1998 and 2000, the Division received additional referrals regarding incidents of domestic violence between defendants in the presence of the two older children. John was incarcerated in 2000 for assaulting his teenage niece, and domestic violence allegations against him continued unabated over the next several years, including one incident in 2005 where John assaulted Nora's older son with a metal pipe and knocked him to the ground. An earlier physical confrontation between Nora's older daughter and John in February 2000, prompted the Division to open a case so that it could offer the family counseling and other services.

In March 2000, the Division received a referral advising it that Nora, then pregnant, was a diabetic and had been hospitalized due to a high blood sugar count and recent heart attack. After James's birth in May 2000, he spent several days in the neonatal intensive care unit to address his volatile blood sugar levels. The Division learned that Nora and the children had been evicted and were temporarily placed in a motel by Social Services. By October 2000, Nora lost her housing benefits and any contact with the Division.

In early 2007, James and Alice's school alerted the Division that the children, both then in kindergarten, had been late thirty-seven times and absent twenty-eight times by February, that they were withdrawn and seldom participated in class, and that Nora had been apprised of those concerns. Nora signed an in-home case management plan agreeing that the children would participate in services provided by the Family Enrichment Program (FEP), that they would attend school and be brought current with their medical care, and that she would submit to a psychological evaluation and attend parenting classes with Jersey Battered Women's Services (JBWS).

In June 2007, the Division learned of John's arrest for possession with intent to sell crack cocaine in a school zone. Nora denied that John had possessed or used drugs. She admitted that he had "beat[en] her" and was "very controlling" in the past, and that she had once even been forced to bring the children to a JBWS shelter, though she returned to him after about six weeks. Nora assured the caseworker that she had completed parenting skills classes and participated in counseling, and that she had secured sufficient medical and financial benefits for the children. John submitted to a substance abuse evaluation later that month as a condition of an in-home case management plan and was recommended for a level-one outpatient treatment program, but he refused to comply with treatment.

Later in June 2007, a caseworker conducted an in-home visit and noticed an open bag of garbage near the window, flies in the house, dirty dishes in the sink, pencil scribbles on the wall, and spilled liquid beneath the table. In September 2007, defendants signed an in-home case management plan agreeing to provide the children with a safe, clean home environment free from domestic violence, address the children's medical and educational needs, undergo psychological evaluations, and comply with recommended services. In October 2007, Nora signed another plan which emphasized the children's need for medical and dental care. Defendants did not comply with those plans in their entirety but did participate in family preservation services during the fall, and Nora submitted to a psychological evaluation in October.

The evaluating psychologist, Nydia Y. Monages, Psy.D., noted that Nora "presented as a dependent, emotional woman" who was committed to her children but tended to minimize the domestic violence in her marriage. Dr. Monages diagnosed Nora with mood disorder with depressive features and recommended her for further psychological evaluation and individual therapy. Nora missed three intake appointments for counseling and cancelled a fourth. She missed another appointment for an evaluation in May 2008, but a Division caseworker drove her to a rescheduled appointment when she cited transportation problems.

The Division continued to receive negative reports from the children's schools about their attendance, poor hygiene, and lack of academic progress. Alice had missed thirty-four days of school by early June 2008, and frequently arrived at school without a snack and wearing clothing that was too small. James had been absent forty-five days by that time and often appeared unhealthy, "extremely underweight and pale with prominent dark circles under his eyes," in addition to being attired in ill-fitting clothes. His teacher reported, moreover, that he had been delayed for evaluation for a special education program due to Nora's failure to take him for a required hearing test.

Defendants separated during the summer of 2008. In August 2008, a caseworker visited the home regarding another referral pertaining to allegations that the home was being poorly kept and with little food. At that time, Nora admitted to the caseworker that she was sometimes not compliant with medication for her diabetes and, as a result, was often tired, continued to have trouble with her eyesight, and had difficulty walking.

In September and October 2008, the Division received further referrals reporting that the children appeared malnourished and failed to attend school regularly. By the middle of October 2008, James had missed ten of thirty-three school days. Shortly thereafter, Nora signed another case management plan, agreeing to send the children to school every day, follow up on children's medical appointments, dress the children appropriately, and monitor their hygiene. The Division warned her that failure to comply could result in removal of the children. On investigating further referrals from the children's schools that November, Nora admitted that she had not fully complied with the signed plan. The Division learned as well that although Nora had scheduled some of the promised medical appointments for the children, she did not attend them. Thereafter, the Division filed for custody of all three children.3

The Division placed James and Alice with a maternal aunt and uncle, and referred the children for psychological evaluations. Thereafter, James and Alice received individual therapy to address their removal, and supervised visitation with Nora. James and Alice thrived in their new placement, were current on all medical and dental care within a month, and had "close to perfect" attendance at school. The Division arranged for supervision during Nora's visits with James and Alice.

In the summer of 2009, the Division received information regarding Nora's use of prescription drugs, particularly of an incident where she mixed those drugs with alcohol. Nora attended a substance abuse evaluation, which resulted in a recommendation that Nora attend a level two program. Nora resisted participating in the program and insisted that she did not regularly mix alcohol and prescription medication. The Division recommended Nora for parenting classes and a supervised visitation program, as well, but she did not comply with the latter. By the fall of 2009, her visits with the children became "sporadic," and her telephone calls to the children were less frequent.

Following removal, the Division notified John to remain in contact with the agency and to follow up on recommendations from his psychological evaluations. It offered him weekly visitation with the children, and he participated in three to five of those visits prior to his incarceration. During a visit with the whole family, Nora and John "bec[ame] agitated with one another" in front of the children.

At trial, the Division presented testimony from Elizabeth Smith, Ph.D., who had conducted psychological evaluations of defendants, bonding evaluations of the children with Nora, and bonding evaluations with their foster parents. Dr. Smith interviewed Nora and performed the Millon Clinical Multiaxial Inventory (MCMI-III) standard personality test. Nora achieved a "very low disclosure rate" on the MCMI-III and an elevated score only on the compulsive scale despite having no evidence of compulsivity in her history. Dr. Smith interpreted those "not very helpful" results as typical of a respondent who was "trying to present [herself] well" and relied largely on the clinical interview and review of Nora's history to arrive at her assessment. Dr. Smith diagnosed Nora with a personality disorder, not otherwise specified. Dr. Smith explained that Nora exhibited features of many different personality disorders, most significantly narcissism, because of her inability to appreciate her own contribution to the family's circumstances, particularly the children's.

Significantly, Dr. Smith added that Nora would likely not be able to safely parent James and Alice alone, because "if [they] were reunited with her at this point, they would basically wind up caring for her" rather than the other way around. Such an arrangement would not only endanger fulfillment of their own basic needs, but could impact their emotional growth and development as independent individuals. In sum, Dr. Smith concluded that the children would remain at risk of harm if returned to Nora, whether or not with Leonard.

Dr. Smith evaluated John while he was incarcerated. Dr. Smith administered the same MCMI-III to John, except in Spanish, as well as the Adult Adolescent Parenting (AAPI) and Child Abuse Potential Inventories (CAPI). His "very high" and significant elevations on the narcissistic and dependent personality scales, respectively, were consistent with his presentation and history. He cited his work responsibilities and disclaimed responsibility for the children's neglect, and rationalized his arrest as a consequence of selling drugs to support his family after his work hours had been cut. Although he acknowledged that the children's removal had been appropriate, he denied any responsibility for the circumstances leading up to it. Of further concern was that John had achieved the lowest score possible on the AAPI's measure of his ability to empathize with his children and only a slightly higher score on the dimension of the test relevant to power and control issues. The former indicated that he would have difficulty seeing matters from his children's perspective, while the latter suggested that he would tend to rely on "draconian" parenting techniques and fail to encourage a healthy independence for his children. Dr. Smith concluded that he would not be able to provide the safety or stability the children required for the foreseeable future, whether or not he remained incarcerated.4

Incarceration precluded Dr. Smith from conducting a bonding evaluation with John, but, as mentioned, she conducted bonding evaluations with Nora and with the children's foster parents. Dr. Smith described the attachment between a child and his or her parent as the "most important relationship of one's life," fostering both physical and emotional growth and serving as a "template" for relationships and social interactions in adulthood. To evaluate that bond, she observes an hour-long visit between the child and his or her parent in an office stocked with books and toys and assesses the quality of their interaction. She instructs them to play and have an ordinary visit and, before the hour is over, make a picture together of their family doing something fun together.

Based on her clinical observations and review of the case history, Dr. Smith described the children's feelings toward Nora as loving but somewhat ambivalent. The children drew a picture with Nora's encouragement, but did not collaborate or draw the family doing something fun as Smith had requested; James just drew himself and Alice drew herself and her mother. Dr. Smith learned from Nora's sister that Nora usually called the children no more than about once a week for a brief conversation, although she was free to call any time, and attended only every other scheduled visit.

Dr. Smith conducted a similar assessment of the children's bond with their aunt and uncle. She noted that their play time was much more organized than it had been with Nora and, in particular, that James was much less hyperactive. The children were very affectionate toward their aunt and uncle and, at one point, Alice spontaneously called her uncle "dad." They all collaborated on an elaborate, colorful picture of themselves on vacation together at the beach.

Dr. Smith concluded that the children would be harmed by disrupting their current stable home life to return them to an environment that presented a continued and heightened risk of neglect. She noted that, prior to removal, Alice had performed poorly in school and that James often came to school "sad, looking malnourished." She added that a return to such an environment would inhibit their ability to develop a healthy personality and learn to make good, realistic choices in life. She further concluded that termination of parental rights, on the other hand, would have no negative long-term consequences for the children, because they understood on some level that their parents could not adequately care for them and already felt secure in their current placement.

The Law Guardian produced testimony from Alison Strasser Winston, Ph.D., an expert in clinical psychology with a specialty in children's maltreatment. Dr. Winston conducted psychological evaluations of the children and bonding evaluations between the children and Nora and between the children and their foster parents. The children appeared happy living with their foster parents, were affectionate with them, and looked to them for safety and stability. Dr. Winston concluded that adoption would be in the children's best interests. Their aunt and uncle would be able to provide them with the permanency that they require, while a potentially failed reunification with Nora would be "devastating" to them. She acknowledged that the children might initially be upset by termination, but believed that their foster parents, with whom they had already formed a bond, would be capable of meeting their emotional needs.

Nora offered testimony from Susan Blackstone Skolnick, Ph.D., who conducted a psychological evaluation of Nora and a bonding evaluation with the children and Nora, but not one with the children and their foster parents. In her report, Dr. Skolnick stated that it would be in the best interest of James, Alice, and even Nora for the children to remain with their foster parents for the time being, because Nora then lacked the "physical strength to care for anyone other than herself," but could safely and effectively parent the children once she stabilized her health. By the time of trial, Skolnick believed Nora had made the appropriate progress in that respect, based on Nora's self-report to Dr. Skolnick on the morning of Dr. Skolnick's testimony that her diabetes was then under control. Dr. Skolnick observed that the children maintained a strong bond with Nora and did not believe that termination would be in their best interests.

Nora testified on her own behalf that she planned to obtain suitable housing and care for James and Alice with the help of her adult daughter, who had recently moved back to the area from California, and her adult son. At the time of trial, her son had two jobs and partial custody of two children of his own. Her daughter was seeking employment and living with family. Nora was then living with family, as well, but would move to a larger house where all of them could live together, in the event of reunification with the children. Nora also reported that she is now legally blind.

The children's aunt and current foster mother testified that she and her husband had discussed the options of kinship legal guardianship (KLG) and adoption, and that they preferred adoption as the more permanent solution for the children. She did recognize, though, that the children maintained an emotional attachment to Nora and would be amenable to allowing them continued contact with her, so long as it made them happy.

On March 9, 2012, Judge Michael P. Wright rendered a comprehensive oral decision that the Division met its burden of proof establishing that defendants' parental rights should be terminated. In rendering his decision, Judge Wright correctly employed the four-prong test contained in N.J.S.A.30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(1) The child's safety, health[,] or develop-ment 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. . . .;

(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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (discussing the four prongs), superseded by statute on other grounds, N.J.S.A. 9:3-46.

Judge Wright determined that there was clear and convincing evidence to meet the first prong and stated that

the totality of the record regarding [John's] history of crime, violence, drug activity, incarceration[,] and his ultimate deportation together with [Nora's] inability to ensure that [James] and [Alice] received medical treatment, a stable and clean home environment, attend school and eat appropriately[,] clearly and convincingly establish that [the children's] safety, health[,] and development were and will continue to be endangered by the ongoing parental relationship with [Nora and John].

The judge concluded that John's violent and criminal history endangered the children's safety, health, and development. His relationship with Nora was "fraught with domestic violence," often requiring police intervention, and his criminal record included arrests for assaulting a teenage niece, possession of stolen property, and possession of crack-cocaine with the intent to sell in a school zone. He nonetheless claimed no responsibility for his children's circumstances, according to Dr. Smith, and refused substance abuse treatment that the Division offered. Further, he was, for the most part, absent from the children's lives even prior to his incarceration and deportation.

On appeal, John asserts that he never harmed the children, apparently on the notion that he never physically hurt them. The court, however, appropriately recognized that John's introduction of aggressive behavior and violence into the family home was nonetheless harmful to them. See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 584-85 (App. Div. 2010) (noting that children may be harmed by exposure to domestic violence in a manner contemplated by the statute even when the children themselves are not physically hurt by it).

Although Nora had no history of violence, her physical and mental health limitations, parenting deficiencies, and consistent resistance to taking advantage of the help that the Division offered to address those circumstances harmed the children. She repeatedly failed to take the children to recommended medical and dental appointments or even secure health insurance for them despite having signed a series of in-home case management plans agreeing to get them that care. Nor did she comply with those plans by ensuring that the children regularly attended school. Prior to the children's removal, the Division had received approximately ten referrals regarding their absence, tardiness, and lack of academic progress and reporting that they frequently came to school without a snack, inappropriately dressed, and malnourished. At one point, Nora lost the family's housing benefits for failure to attend the required weekly meetings.

Moreover, Nora had consistently failed to address her own considerable medical and psychological difficulties, which together impeded her ability to safely and effectively parent the children, as found by several psychologists who had evaluated her. Dr. Smith, whom the court found particularly credible, described Nora as a "disorganized" and "very troubled woman" who "seem[ed] to have been only marginally able to care for herself or her family." She took no responsibility for her "obvious" parenting deficiencies, and the children would remain at a "high risk" for neglect if returned to her.

The judge also found that there was clear and convincing evidence to meet the second prong and concluded that defendants would neither be able to eliminate the harm faced by the children or provide a safe, stable home for the children for the foreseeable future, and that any delay in permanency would further add to that harm.

John had been unwilling to make any necessary changes. He had exposed the family to domestic violence, failed to keep them in appropriate housing, and had been largely absent from family life due to his criminal activity and eventual deportation. While he complied with psychological and substance abuse evaluations prior to his deportation, he refused the recommended substance abuse treatment, denied any responsibility at all for his children's neglect, and "made no effort to become involved" in remedying it. Nor did he participate meaningfully in recommended anger management or parenting classes. The court observed that he had never presented "as a stable nurturing parent" and, given his history of denial of responsibility and failure to engage in services, would be unlikely to remove the harm facing the children.

The court was "completely satisfied" that Nora wished to make any necessary changes, but concluded that she was simply unable to do so, noting that, "in the instances in which she did demonstrate a modicum of compliance [with recommended services], it was short-lived." She had initially declined family outreach services and anger management and parenting classes, and when she later complied with a psychological evaluation, she failed to participate in the individual therapy or outreach services that the evaluator recommended. Although she repeatedly agreed to address the children's medical and dental needs, she failed to meet any of her promised goals by the time the children were removed from her care. Indeed, after a caseworker drove her to the social services office so that she could apply for medical insurance and other crucial assistance, she failed to follow through, just as she failed to complete the necessary paperwork to enroll the children in afterschool care that the Division paid for.

Although Nora participated in recommended services for a few months after the children were removed, she soon reverted to noncompliance. She only sporadically attended visits with the children, failed to attend parenting classes, and missed three scheduled intake appointments for a therapeutic supervised visitation program. Eventually, she also ceased attending her individual therapy sessions. The court concluded that this repeated noncompliance demonstrated that she would be unable, if not unwilling, to remedy the harm preventing reunification. Furthermore, the judge relied on Dr. Smith's opinion that Nora would be unable to care for James and Alice adequately, whether or not Leonard was also reunified with her.

As for the third prong, Judge Wright found that the Division made reasonable efforts to provide services to help defendants correct the circumstances that led to the children's placement outside the home. The Division offered psychological evaluations; bonding evaluations; transportation; visitation; anger management and parenting classes; substance abuse evaluations; substance abuse treatment; in-home case management plans; services for the children; including recommendations for complete medical and dental examinations that their vaccinations be brought up to date, and that James see an ophthalmologist and a speech therapist; individual therapy; access to afterschool care for the children; made arrangements for social services to pay the first month's rent and security deposit; and a referral for psychiatric evaluations.

On appeal, Nora contends that the court ignored her testimony that she had made arrangements with her adult daughter and son to live with her and help her care for the children so that they could safely be reunified with her. While she asserts that that plan would address all of the Division's concerns, she never mentioned that plan to any of the experts so that they could evaluate the option and cites no other evidence in the record from which the court could have concluded that it would have presented a viable alternative to termination.

Nevertheless, Kinship Legal Guardianship (KLG) is available only where "'adoption of the child is neither feasible nor likely.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508-09 (2004) (quoting N.J.S.A. 3B:12A-1); accord N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 137 (App. Div. 2011). That is not the case here, where the children's aunt and uncle were prepared to adopt them.

Judge Wright concluded that termination of parental rights would not do more harm than good. The judge reiterated his finding that John's relationship with the children continued to harm their safety, health, and development, and that their need for permanency weighed in favor of termination. Termination would likely cause little harm, because, while Winston indicated that James still had pleasant memories of his father and that Alice at least had no negative memories of him, Dr. Smith had concluded that neither child seemed to have a significant attachment to him. Moreover, now that he has been deported, reunification with John in Ecuador would be ill-advised given their lack of stability with him and their thriving in their aunt and uncle's care.

Regarding Nora, the children "clearly and consistently" stated their desire to return to her care. But Dr. Skolnick acknowledged that, given Nora's difficulties in caring even for herself, it would be in the children's best interest to remain in their aunt and uncle's care for the time being. The court agreed with Dr. Skolnick that severing the children's relationship with Nora would cause them some harm at the outset, but concluded that that harm would be "greatly outweighed" by the permanency of a stable, loving home that their aunt and uncle offered and would dissipate with the passage of time. Dr. Skolnick recognized that Nora would need to address her health and take better care of herself before she could safely parent her children. However, she had proven unable to stabilize her health and had repeatedly failed to participate in offered services meant to address the harm posed to the children by their relationship with her. The children's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong. See In re Guardianship of D.M.H., 161 N.J. 365, 385-86 (1999).

Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial[,] and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice," Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings receive deference unless "so wide of the mark that the judge was clearly mistaken"). Here, the judge s findings are supported by adequate, substantial, and credible evidence.

We have considered the entire record and conclude that defendants' remaining contentions are unpersuasive. We affirm substantially for the reasons expressed in Judge Wright's oral opinion dated March 9, 2012.

Affirmed.

1 The Division of Youth and Family Services (the Division) is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 We have used pseudonyms for the parties and their children. James was born in 2000, and Alice was born in 2001. A third child, L.F.C. (Leonard), was born in 1998. Leonard was placed in a residential facility with programs for special needs children following James' and Alice's removal. He is not the subject of this appeal.

3 Leonard, who had been hospitalized twice during 2008 for behavioral issues, including aggression toward Nora and his younger siblings, was ultimately placed in a specialized residential facility consistent with his neurologist's recommendations.

4 In or around the summer of 2011, John was deported to Ecuador, but was present for most of the trial.