NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.C.

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NOT FOR PUBLICATION WITHOUT THE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.

C.C.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.C. and A.C.,

Minors.

________________________________________________

October 23, 2014

Submitted September 23, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-0015-12.

Joseph E. Krakora, Public Defender, attorney for appellant C.C. (Alan I. Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian for minors N.C. and A.C. (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant C.C. appeals from the Family Part order that terminated her parental rights to her children, N.C. ("Nancy"), and A.C. ("Andy").1 For the reasons that follow we affirm.

As the Court has made clear, "[t]he focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division of Child Placement and Permanency (the Division) must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012). Those four statutory standards are

(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).]

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." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted).

Our review "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 ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293).

We accord particular deference to the judge's fact finding because of "the family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (internal quotation marks 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 facts adduced from the testimony and documentary evidence introduced at the guardianship trial reveal that, fearing the Division's involvement after her parental rights to two other children were terminated in December 2008, defendant traveled to Pennsylvania to give birth to Nancy in April 2009. Within months, the Division received a report that defendant was smoking marijuana while caring for Nancy. The Division's investigation revealed the referral was made by Nancy's father, who feared defendant would take Nancy out of state. The allegations were deemed unfounded, but, given defendant's prior history, the Division opened a file to provide services to defendant and Nancy. During a substance abuse evaluation, defendant admitted that she had last used alcohol and smoked marijuana on June 22, 2009. Attempts to refer defendant for counseling were largely unsuccessful because she failed to comply.

On January 26, 2010, defendant told the Division that she was no longer smoking marijuana because she was pregnant and "might be due in July." Efforts to actually locate defendant were unsuccessful at first, but, in February, she was interviewed at the home of a friend where she and Nancy were temporarily staying. Over the ensuing months, defendant avoided submitting urine samples or attending substance abuse counseling, contending that her physician ordered her to limit her activities because of her pregnancy. Although the physician denied giving any such instruction, he also reported that defendant's most recent drug screen in June had been negative.

On June 23, 2010, the Division filed a verified complaint for custody, care and supervision of Nancy. Approximately two weeks later, defendant gave birth to Andy, who had a congenital deformity on his hands, i.e., an extra digit attached to each thumb. Together with both children, defendant had moved into an apartment with A.C. ("Adam"), Andy's father, and his siblings. The Division arranged for daily in-home care for the family through the Emergency Child Aid Program (ECAP). Worker notes during the ensuing month demonstrate a chaotic home, unkempt and with little food.

In early August, J.R. ("Jennifer"), Adam's sister, who lived with the family, advised the ECAP worker that there were guns in the home and Adam regularly "cuts drugs up" in the bedroom he shared with defendant and the children. The Division worker and police responded to the home, but defendant refused them permission to search the premises. The Division affected an emergency "Dodd removal" of the children.2 After a hearing on August 4, the judge granted the Division temporary custody of Nancy and Adam, who were eventually placed in the home of a foster parent, W.P. ("Wanda").

The ensuing months demonstrated defendant's pattern of non-compliance with services and a general animosity toward the Division. Supervised visitation was also marred by defendant's antagonism toward the Division and criticism of Wanda's care of the children.

On October 4, Dr. Elizabeth E. Groisser, J.D., Psy.D.conducted a psychological evaluation of defendant, during which she reported a "history of getting pregnant to have another child when one of her children [was] taken away . . . ." Defendant revealed that Adam had a "long history" of committing domestic violence against her, but believed she would not benefit from therapy because she "'realize[d] everything on [her] own.'" Defendant claimed Adam was a member of the Bloods, and she was concerned that her son would automatically be part of the gang.

Defendant continued to avoid substance abuse evaluation and refused to provide the Division with an address where she was living. At a fact-finding hearing held on October 28, 2010, the judge concluded that defendant had neglected the children's medical needs by failing to take them to the doctor, and that she had been under the influence of marijuana while pregnant.

Defendant continued to participate in supervised visitation. On February 28, 2011, the Division worker noted that defendant was attending parenting classes and vocational counseling at the Future Project, and domestic violence counseling elsewhere. However, one month later, defendant was no longer attending domestic violence or parenting classes, and she had not attended substance abuse counseling. The children were doing well with Wanda, who indicated a desire to adopt them.

During the ensuing months, defendant continued to participate in visitation, obtained employment and resumed counseling. However, her life was marred by continued contact with Adam, apparently against her will, and his violent conduct toward her. In July, the Division was notified that defendant's last drug screen was positive for marijuana use, and she was discharged from her treatment program because she failed to attend after the first week.

The Division filed a complaint for guardianship on September 6, 2011, and it evaluated other individuals as placement options, including Adam's sister, Jennifer, and D.A. ("Donna"), defendant's grandmother, who now lived in Georgia and had adopted defendant's two older children. Both expressed an interest in adopting the children, although defendant advised the Division that she did not want Jennifer to adopt the children because her referral had started the entire investigation leading to the litigation. On December 12, 2011, Judge George E. Sabbath accepted defendant's voluntary identified surrender of her parental rights to Nancy and Andy in favor of Donna, and he accordingly entered a judgment of guardianship.

However, in February 2012, problems arose regarding Donna's eligibility for licensure by Georgia authorities, and her inability to meet the financial requirements for licensure here and in Georgia. Defendant did not wish to execute an identified surrender in favor of Wanda and requested that the Division again refer her for services, including substance abuse counseling. The prior judgment of guardianship was vacated in August, after the Division filed an amended complaint for guardianship.

Although she regularly attended visitation with her children during these months, defendant failed to comply with her substance abuse counseling and tested positive for marijuana use on more than one occasion. At an internal review conducted on December 13, the Division noted that defendant was again pregnant and had been staying in a shelter since November 26.

Judge Sabbath presided over a guardianship trial in February 2013. In addition to producing Erika Jersey, a Family Service Specialist Adoption Worker for the Division, and Jessica Checo, the Division caseworker, as witnesses, the Division called as its expert Robert Kanen, Psy.D., who had conducted a psychological evaluation of defendant, as well as bonding evaluations of defendant with both children, and Wanda with both children.

Dr. Kanen testified that defendant displayed "no evidence of major mental illness," but there were "personality problems that interfere with social occupational and parental functioning." He determined that

her capacity to cope with the demands in daily life is poor, basically a dependent person who seems to prefer a simple repetitive and dependent lifestyle . . . where she doesn't have to make too many decisions for herself, kind of uninterested in most rewards that people get out of relationships. She's . . . erratic, moody, complaining, sometimes strange, self-centered, self-absorbed, irresponsible, undependable.

Based on these observations, Dr. Kanen opined that defendant "would not be very involved with [the children] on a day-to-day basis. She would be at risk of neglecting them, in terms of getting their needs met, services met, because she's very dependent, unmotivated, self-absorbed, smoking marijuana excessively, which also tends to make you even more self-absorbed." He concluded that Nancy and Andy "would be at risk of harm if they were returned to her care, [and] that she could not provide them with a permanent, safe and secure home."

Regarding the bonding evaluation, Dr. Kanen observed that Nancy had a "very, very hypersensitive, explosive temperament." Defendant had "very low patience" for Nancy's outbursts, and became "very irritable, very angry and very impatient." In contrast, when Nancy became upset during the bonding evaluation with Wanda, Wanda was "able to soothe her, quiet her down, reduce her distress." "[T]he crying did not last as long, the tantrums did not last as long." Dr. Kanen testified that the children had a "severely impaired" bond with defendant, and that they would "suffer serious harm" if returned to defendant's care.

In contrast, the children were "securely attached to the foster mother . . . . They perceive[d] her as their mother, as their reliable caretaker." Dr. Kanen opined that Nancy "need[ed] consistent nurturing[,] . . . firm limits and somebody who she knows she's safe with, and the foster mother provides her with that." Defendant would be unable to mitigate the harm suffered by both children if they were separated from Wanda.

Defendant called Donna as a witness. She testified via telephone and indicated her willingness to move to New Jersey to serve as a resource parent for Nancy and Adam, but claimed she had not yet done so because a Division worker had dissuaded her, claiming the children's case had "been going on too long." Donna had not secured employment or taken steps to obtain a divorce by the time of trial.3 Donna testified that although she had been in New Jersey immediately prior to trial, she returned to Georgia the day before the proceedings commenced after being informed by Checo that she would not be permitted in the courtroom.4 Defendant did not testify, but, on March 26, she submitted a letter to the court requesting reunification with her children.

Judge Sabbath issued his oral decision on April 15, 2013. He determined that the Division had satisfied prong one of the statutory test, noting defendant's refusal to seek medical care for the children in August 2010, despite the fact that both had diaper rash. The judge noted the reports from ECAP workers in the home who had observed defendant routinely screaming and yelling at her children, and generally behaving in a belligerent fashion. Judge Sabbath further observed that defendant had been non-compliant regarding her substance abuse problems, and he credited Dr. Kanen's conclusion that "the children would be subject to significant risk if they were returned to the custody and care of [defendant] . . . . " Regarding the second statutory prong, the judge cited defendant's repeated failure to comply with services and Dr. Kanen's determination that the children did not view defendant as a parental figure.

The judge found the Division had made reasonable efforts under prong three, by providing "[s]ignificant services" to defendant, despite the fact that her parental rights to two older children had previously been terminated. Judge Sabbath detailed the variety of services, including at least six substance abuse assessments the Division arranged between January 2011 and January 2013.

He also concluded that there were no alternatives to termination. Judge Sabbath noted that Donna, who left New Jersey for Georgia after the children had been in foster care for ten months, had not moved back or otherwise become employed. He stated that, "until [the date of trial,] [Donna] ha[d] not engaged the child[ren] significantly. She has no attachment to the child[ren] and has never come to the court proceedings in any significant degree."

Judge Sabbath also determined that the Division had satisfied the fourth and final prong. He credited Dr. Kanen's unrebutted report and testimony that the children had become bonded to Wanda "as their psychological parent and caregiver" and that the termination of defendant's parental rights would not result in "serious and enduring harm." The judge entered the order terminating defendant's parental rights to Nancy and Andy, and this appeal ensued.

Before us, defendant argues that the Division failed to prove by clear and convincing evidence all four prongs of the statutory best interests test. The Division and the Law Guardian argue to the contrary. We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Sabbath in his comprehensive oral opinion. We add only the following.

Defendant argues her behavior did not cause any harm to Nancy or Andy, and she actually was meeting the children's daily needs. Our courts have recognized that when considering the first prong, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The Division "does not have to wait until a child is actually irreparably impaired . . . ." F.M., supra, 211 N.J. at 449 (internal quotation marks omitted). Here, defendant's nomadic lifestyle, her continued use of marijuana and her refusal to address her substance abuse clearly and convincingly demonstrated the children's safety, health and development had been and would likely continue to be endangered. N.J.S.A. 30:4C-15.1(a)(1).

Defendant argues that the Division failed to prove the second prong because, although she never completed any substance abuse program to which she was referred, she attempted to comply and did participate regularly in visitation with her children. She argues that there were no "compelling reasons" to terminate her parental rights.

The second standard "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). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).

Here, defendant was unable to come to grips with her substance abuse issues and essentially gave up trying. There is no question that during the pendency of the litigation, she never was able to establish stability at home, and the prospect of doing so in the near future was unlikely.

Defendant's challenge to the third prong proofs centers on the aborted efforts to place Nancy and Andy with Donna. N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "diligent efforts to provide services to help the parent correct the circumstances that led to the child s placement outside the home," and that the court "consider[] alternatives to termination of parental rights." Provision of services under the third prong "contemplates efforts that focus on reunification . . . ." K.H.O., supra, 161 N.J. at 354. The reasonableness of the Division's efforts "is not measured by their success." D.M.H., supra, 161 N.J. at 393.

Defendant argues that placement with Donna was not precluded by Georgia's decision not to license her. See, e.g., Div. of Youth and Family Servs. v. K.F., 353 N.J. Super.623, 635 (App. Div. 2002) (holding that the Interstate Compact on the Placement of Children, N.J.S.A.9:23-5, did not apply to bar the Family Part's order placing grandchildren with their out-of-state grandparents who were not qualified by the receiving state). Defendant argues the Division should have done more to help Donna qualify and be financially capable of caring for the children.

However, Judge Sabbath specifically concluded that the Division's decision to ultimately rule out Donna and support vacation of the prior identified surrender was appropriate. Donna had not received approval by the Georgia authorities, but the Division offered to assist her in securing her divorce; she made no effort to accept this offer. Donna also failed to meet the financial criteria, and Judge Sabbath determined that she had not taken the necessary steps to find a job or move to New Jersey between February 2012, when she was advised of the issues preventing her from becoming licensed, and the trial, twelve months later. We find no reason to disturb the judge's findings and conclusions as to prong three.

Lastly, defendant argues that termination was not appropriate simply because the children may have had a stronger bond with Wanda than with her. She contends the judge only considered the harm occasioned by rupturing the bond with Wanda, but did not consider the harm occasioned by the termination of her parental rights.

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. In most circumstances, 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, will "the child . . . 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. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25) (internal quotation marks omitted).

Judge Sabbath relied upon the unrebutted testimony and reports of Dr. Kanen. In his report, the doctor specifically stated that "[t]he children would not suffer serious and enduring harm if permanently removed from [defendant]." Taken as a whole, the record demonstrates that the Division met its

burden of proof regarding the fourth prong of the statutory test.

Affirmed.

1 For privacy reasons, we have fictionalized the names of the parties involved.

2 See N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) ("'A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974.'" (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010))).

3 One of the issues presented at the time of Donna's disqualification was the fact that she was separated from, but not divorced from, her husband, who had not been interviewed by Georgia social service authorities. Donna's move to Georgia occurred after she had adopted defendant's two older children in New Jersey.

4 Checo was called on rebuttal and denied this.