NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.P.

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NOT FOR PUBLICATION WITHOUT THE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.

J.P.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF H.H.,

a minor.

________________________________________________________

November 21, 2014

Submitted October 21, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-0016-12.

Joseph E. Krakora, Public Defender, attorney for appellant J.P. (Mark E. Kleiman, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Russell M. Smith, Jr., Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian for minor H.H. (Linda Vele Alexander, Designated Counsel, on the brief).

PER CURIAM

Defendant J.P. appeals from the Family Part's August 6, 2013 order that terminated her parental rights to her son, H.H. ("Henry").1 She argues that 1) plaintiff, the New Jersey Division of Child Protection and Permanency (the "Division"), failed to prove by clear and convincing evidence that termination of her parental rights would not do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), and 2) reversal is required because at trial the Law Guardian failed to adequately present Henry's wishes to remain with his mother. The Division and the Law Guardian counter by contending that the proofs as to prong four of the statutory "best interests" test were clear and convincing, and that Henry's wishes were amply demonstrated by the evidence and considered by the judge.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Because defendant's challenge is confined to the fourth prong of the statutory test, we provide some limited background and otherwise condense the substantial evidence at the guardianship trial to include only that which is most relevant to our consideration of the issue.

Henry was born in April 2003 to defendant and W.H., who subsequently died when his son was not yet four months old. Defendant's history with the Division was extensive, including three occasions when Henry was removed from her care and custody prior to October 2011, the first time being in 2004, when he was approximately fifteen months old.

In October 2011, the Division received a referral from staff at Saint Clare's Hospital in Sussex after defendant presented to the emergency room in a lethargic and incoherent state. The Division effectuated an emergency removal, and Henry was placed with his paternal grandmother, M.H. ("Millie"), who was present in the emergency room at the time. Henry had been placed with Millie during prior removals, and she was already licensed as a resource parent by the Division. Henry would remain with Millie throughout the proceedings and the guardianship trial.

At trial, the Division called a series of medical providers as witnesses. They described defendant's physical ailments and her longstanding history of opiate dependence. Dr. Jenny Blanchard, a psychiatrist, opined that defendant displayed symptoms of bipolar disorder, psychosis and paranoia.

The Division also produced a number of witnesses, including members of the New Jersey State Police, who testified regarding specific instances of defendant's aberrant behavior in 2012 and 2013, which, on occasion, required a response by law enforcement. Several witnesses described an incident at Henry's school in February 2013, during which defendant was discovered slumped over the steering wheel of her car. Defendant told the school nurse, "I don't want my son to see me like this." When the nurse went back into the school to get diagnostic equipment to check defendant's glucose levels, defendant drove away.

Dawn Celi, an adoption supervisor with the Division, testified that Henry was a medically fragile child, and if he were legally free for adoption, the Division's permanency plan would be "select home adoption," since Millie, who was seventy-five years old, was unwilling to adopt him. Millie testified that while she wanted to remain in Henry's life, she was unable to physically care for him in the long term. She specifically did not want defendant to be involved with Henry.

The Division explored the possibility of placing Henry with other relatives, including his stepmother, M.H. ("Madge"), the widow of Henry's biological father, since Henry had spent significant time with the family and had a strong attachment to his half-siblings. However, although she evidenced an interest in adopting Henry, Madge remained reluctant, concerned that defendant would remain involved in the child's life.2

Celi explained, however, that there were six families in New Jersey that indicated a willingness to adopt a child with Henry's myriad physical and developmental concerns, and permit continued contact with defendant and Millie after adoption. Additionally, there were several other families in New Jersey who were willing to adopt a child with Henry's needs. Celi acknowledged there was a strong bond between Henry and his mother.

Dr. Mark Singer testified for the Division as an expert in forensic psychology, parental fitness, and bonding. Dr. Singer conducted a series of psychological evaluations of defendant, two bonding evaluations with defendant and Henry, and a bonding evaluation with Henry and Millie. Dr. Singer opined that "the totality of the data . . . does not suggest that [defendant] is capable of functioning as a minimally adequate parent for [Henry]." Dr. Singer further testified that Henry would have a "significant traumatic reaction" if his relationship with his mother was severed, and it would be "highly traumatic" if Henry lost his relationships with both defendant and Millie at the same time.

Dr. Singer stated that "ideally," Henry should stay with Millie if she and defendant "could get along." However, if that was not possible, Dr. Singer believed that Henry should "be transitioned into a stable, permanent home over a period of time." It would be "ideal" if that family would "maintain[] a relationship with [Henry's] significant attachment figures." Dr. Singer believed, however, that the harm occasioned by severing Henry's ties with defendant could be mitigated, if he were in "a stable, safe, [and] secure environment[,]" and he received "long[-]term therapy." Dr. Singer opined that the greater risk to Henry was "returning [him] home to a parent who clearly loves [him], but who cannot care for [him]."

The Law Guardian called Dr. Frank J. Dyer as an expert witness in psychology. Dr. Dyer noted that defendant's prior history revealed she was "so incapacitated by drug use" that she was unable to care for Henry. As to the attachment between defendant and Henry, Dr. Dyer described the relationship as a "desperate dependence." "[Henry] appeared to be somewhat parentified towards [defendant], that is [he] [wa]s concerned about her welfare, putting her needs above his own, preoccupied with her safety, and so forth." "[T]his was significantly complicated by the repeated removals and failed reunifications . . . ." Dr. Dyer made it clear that Henry wished to live with his mother. Like Dr. Singer, Dr. Dyer believed that ideally Henry should stay in Millie's home, but, if she was unavailable to care for Henry, Dr. Dyer opined Henry should be "anywhere but a reunification with [defendant]."

Defendant and her husband, E.B. ("Eddie"), testified. Eddie had known defendant and Henry for approximately three years, and he and defendant married in April 2013, approximately one month before they testified. Eddie entered this country illegally from Guatemala, and he acknowledged that he had a family and wife in that country to whom he sent monthly support.3

Defendant testified that she and Eddie had moved into a new home, with sufficient space for Henry and a large yard in which he could play. Defendant countered much of the specific testimony introduced by the Division regarding her aberrant behavior and generally asserted that she was able to care for her son.

Dr. Antonio Burr testified as an expert in psychology on defendant's behalf. Dr. Burr opined that defendant "suffer[ed] from fairly significant psychological problems" dating back to her adolescent years. Dr. Burr opined that Henry had "a very significant attachment . . . to []his mother," who he viewed "as his primary parental figure." Although he had originally opined that reunification was the best result for Henry, at trial, Dr. Burr agreed that the "best option . . . at this point" was for Henry to remain in Millie's care. Dr. Burr stated that Henry wished to return to live with his mother, and that severing his ties with defendant would be emotionally "destabilizing."

II.

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)).

"[W]here the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).

When the State seeks to terminate parental rights, the Division 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 N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010).]

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" which are evaluated by application of these four statutory standards. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The four prongs "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, 258 (App. Div. 2005)).

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. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L. supra, 191 N.J. at 609. Generally speaking, expert testimony is necessary to assess whether the prong four standard has been proven. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999).

Satisfaction of the fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. However, "courts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." E.P. supra, 196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610-11 (1986)). "Such harm may occur when a child is cycled through multiple foster homes after a parent's rights are severed." Ibid.

In his comprehensive oral decision, Judge James A. Farber noted that all parties acknowledged his decision depended upon evaluation of the Division's proofs as to the fourth prong, since the evidence as to the first three statutory prongs was clear and convincing. Judge Farber found that Drs. Burr, Dyer, and Singer all reported that Henry loved his mother and wanted to return to her custody, and that severing the mother-child bond would be harmful to Henry.

The judge noted, however, that Dr. Burr was alone in opining that termination would cause greater harm to Henry than would reunification. Judge Farber referenced Dr. Dyer's opinion that the bond between Henry and defendant was "desperate dependence," rather than the stability, permanency and security Henry needed. The judge found that "[i]f there was reunification followed by another removal it would be 'disastrous' to [Henry]." Judge Farber emphasized Dr. Dyer's conclusion that, given defendant's history, another failure was inevitable.

The judge noted that Dr. Singer reached conclusions similar to Dr. Dyer. Although the trauma to Henry caused by separation from his grandmother and mother would be significant, Dr. Singer opined that the "harm could be mitigated, but would take a long time, require a safe and stable environment and long-term therapy." Judge Farber noted that Dr. Singer ultimately opined reunification would be the greater harm because Henry needed stability and permanency, which would only be achieved in an adopted home.

The judge found by clear and convincing evidence that termination of defendant's parental rights would not do more harm than good. Judge Farber reasoned that "[w]hile there are dangers in severing the relationship, even to the extent of potentially enduring harm, there is an opportunity to mitigate and temper that harm with a select home adoption with stability, safety and security and long-term therapy for [Henry]." He entered the order under review.

A.

Defendant argues the Division failed to satisfy its burden of proof as to the fourth prong by clear and convincing evidence. She contends that Judge Farber's decision was based on nothing more than "a prediction" that a viable adoption prospect would materialize to provide Henry with the stability and security he needed. Defendant relies primarily upon E.P., supra, to advance the argument. We think the facts in that case are significantly different from those presented here.

The child in E.P. was a thirteen-year-old girl who, at the time of the guardianship trial, was in her seventh foster home. E.P., supra, 196 N.J. at 109. [T]here was no permanent placement . . . in sight[,]" her prospects for adoption were "bleak" and "the one sustaining force in [her] young life . . . [was] her mother's love and emotional support." Ibid. The Court concluded that terminating the defendant's parental rights to her daughter "d[id] not appear to have any real compensating benefit, particularly in light of the expert opinions rendered at the guardianship hearings that the 'window of attachment to somebody else is closing real fast.'" Ibid.

Here, the evidence at trial demonstrated that unlike the child in E.P., Henry has shown the ability to form significant, stable relationships with people other than defendant, including his grandmother, stepmother, and half siblings. The Division had identified a number of families that were willing to adopt Henry, some of which would permit continued contact between him and his mother and grandmother. Judge Farber accepted the expert opinion that any harm cause by the termination of defendant's parental rights could be ameliorated by adoption and counseling.

In short, we conclude that the Division met its burden of proving by clear and convincing evidence that the termination of defendant's parental rights would not do more harm than good to Henry.

B.

Defendant also contends that we must reverse the judgment and remand the matter because the Law Guardian failed to adequately present evidence of Henry's desire to remain with his mother. She argues that because of that failure, the judge lacked significant evidence in evaluating what was in Henry's best interests.

Pursuant to N.J.S.A. 30:4C-15.4(b) "[a] child who is the subject of an application for the termination of parental rights . . . shall be represented by a law guardian." In such circumstances, counsel "acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted." Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 69 (App. Div.), certif. denied, 174 N.J. 39 (2002). Law guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, to express any concerns regarding the child's safety or well-being and . . . to suggest the appointment of a guardian ad litem. Id. at 70.

However, it is the "[t]he family court [that] must decide what is in the best interests of the child at a parental-rights termination hearing; a child's wishes should be but one factor," since the child's "wishes may often not be in their own best interests." E.P., supra, 196 N.J. at 113 (emphasis added). The Court has said

[I]n appropriate cases, the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion. Moreover, when such a child on his or her own initiative requests the opportunity to express an opinion, the court should allow the child to do so. Because each case will bring to bear particular factors that relate to the psychological well-being of a child, we leave this matter to the sound discretion of the family court.

[Id. at 113-14.]

Here, the record does not reflect that the Law Guardian asked Judge Farber to permit Henry to directly express his desire to live with his mother. However, the record is replete with evidence that those were his wishes. The experts all recognized Henry's stated hope to be reunited with his mother, as did Celi. Dr. Dyer, the expert called by the Law Guardian, did not support reunification and viewed it as the one option to be avoided at all costs. Even if Henry had been called as a witness and expressed his feelings directly to Judge Farber, the other evidence in the case would have clearly and convincingly supported the judgment terminating defendant's parental rights.

Affirmed.

1 We have fictionalized the child's name and the names of others in this opinion to protect their privacy.

2 Although it never moved to supplement the record, the Division included in its appendix a report indicating that as of March 6, 2014, Henry had been placed in Madge's home.

3 Judge Farber stated that the court "intentionally . . . avoided the issue of [E.B.]" when considering termination of defendant's parental rights. It found E.B.'s testimony generally lacked credibility and questioned the legality of E.B.'s marriage to defendant given the uncertain status of his Guatemalan marriage.