NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.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NOT FOR PUBLICATION WITHOUT THE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.

N.C.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF D.C.,

a minor.

________________________________

February 28, 2014

Submitted January 23, 2014 - Decided

Before Judges Sapp-Peterson, Lihotz, and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-113-13.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.C. (Margo E.K. Hirsch, Designated Counsel, on the brief).

PER CURIAM

N.C., the biological mother of D.C., born December 13, 2006, appeals from the Family Part order terminating her parental rights to D.C. and granting guardianship to the Division of Child Protection and Permanency (Division).1 The Law Guardian supported the Division's guardianship complaint before the trial court and continues to do so in this appeal. We affirm.

I.

Prior to initiating the underlying action, the Division had been involved with N.C. and her two older children, E.B. and A.C., who are no longer in her custody, by virtue of a kinship legal guardianship placement with E.B.'s paternal grandmother. In July 2007, the Division responded to Christ Hospital, in Jersey City, on a report that then seven-month-old D.C. had sustained a fractured arm under circumstances N.C. had not satisfactorily explained. The Division effectuated an emergency removal of D.C. and temporarily placed him in his maternal great-aunt's custody. It then commenced to provide services to N.C., and initiated a guardianship complaint against her. The court, however, later found the Division's plan to terminate N.C.'s parental rights to D.C. was unacceptable because "all [D]ivision experts recommend[ed] reunification and no expert indicated that [N.C. was] unable to care for her child." On October 25, 2010, the court entered an order directing reunification of D.C. with N.C. The order also transferred custody of D.C. to N.C., terminated the guardianship proceedings, and transferred the matter to the abuse and neglect docket.

Thereafter, the Division continued to monitor the family and provided services to N.C., which she completed. Caseworkers who visited N.C.'s home and met with both N.C. and D.C. reported that everything was going well. The court terminated the abuse and neglect proceedings in July 2011, because D.C. had been returned home and the conditions, which resulted in the Division's intervention in 2007, had been remediated.

The following month, the Division learned that N.C., along with others, had been involved in an altercation with an individual in her apartment, while D.C. was present. A Division worker interviewed D.C., who reported that N.C.'s boyfriend was being beaten by "[m]ommy's friends" and that blood was coming out the boyfriend's eye. The Division once again effectuated an emergency removal and placed D.C. with his maternal grandmother, where he has remained. On March 2, 2012, N.C. pled guilty to aggravated assault, N.J.S.A. 2C:12-lb(7). The sentencing court imposed a two-year probationary term, conditioned upon N.C. completing a program at Urban Medical Behavioral Health Services, random drug monitoring, and compliance with Division regulations.

N.C. successfully participated in all programs the Division recommended. Nonetheless, in September 2012, the Division once again initiated a guardianship complaint seeking termination of N.C.'s parental rights to D.C. The trial took place before Judge Bernadette DeCastro over two days in March 2013. The Division presented two witnesses, its family services specialist assigned to the family and records' custodian, Vivian Acosta, and its expert, Dr. Elizabeth Smith, a psychologist, who performed a psychological evaluation of N.C. as well as a bonding evaluation between N.C. and D.C. The Law Guardian produced one witness, Dr. Allison Strasser Winston, who performed a psychological evaluation of N.C. and bonding evaluations between N.C. and D.C. and also between D.C. and his maternal grandmother. N.C. did not testify nor produce any witnesses.

On April 26, 2012, Judge DeCastro issued a written opinion in which she found the Division had met its burden of proving, by clear and convincing evidence, the four statutory prongs necessary to establish that termination of N.C.'s parental rights to D.C. was in his best interests. The present appeal ensued.

On appeal N.C. contends:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE PLAINTIFF'S EVIDENCE DID NOT SUPPORT THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a) TO TERMINATE THE MOTHER'S PARENTAL RIGHTS.

A. THE TRIAL COURT ERRED IN FINDING THAT PRONG 2 WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE MOTHER'S DILIGENCE IN COMPLYING WITH ALL RECOMMENDED SERVICES SHOWS THAT SHE WAS WILLING AND ABLE TO REMEDY THE HARM.

1. The Mother Showed Willingness and Ability to Parent her Son by Completing All Recommended Services to Achieve Stability.

2. The Mother Showed Willingness and Ability to Parent her Son by Exhibiting Intuitive and Learned Ability to Manage Behaviors Associated with ADHD.

B. THE TRIAL COURT ERRED IN FINDING THAT PRONG 4 WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE EVIDENCE SHOWED THAT THE CHILD WOULD NOT BENEFIT FROM A PERMANENT SERVERANCE OF THE RELATIONSHIP WITH HIS MOTHER.

We have considered the arguments N.C. has advanced in light of the record, briefs submitted, and applicable legal principles. We reject all of her contentions and affirm substantially for the reasons expressed by Judge DeCastro in her comprehensive and well-reasoned April 26, 2013 written opinion.

II.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651 52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.

"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), vacated on other grounds, 163 N.J. 158 (2000). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.

In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C 15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [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).]

"These standards 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. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (quotation marks omitted).

N.C. does not challenge Judge DeCastro's findings relative to the first and third prongs of the best interests tests. Therefore, we limit our discussion to an evaluation of the evidence upon which Judge DeCastro relied in concluding that the Division met its statutory burden in satisfying the second and fourth prongs of the best interests test.

A.

The second statutory prong requires the Division to show a parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C 15.1(a)(2). The focus of this inquiry is to determine "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348 49. The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. D.M.H., supra, 161 N.J. at 379. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). See also N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (reiterating that as public policy increasingly focuses on a child's need for permanency, "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being"), certif. denied, 180 N.J. 456 (2004).

N.C. maintains that her conduct in complying with the recommended services exhibits her commitment to providing a safe and stable home for D.C. despite the isolated incident in her apartment, which resulted in her conviction for aggravated assault. She additionally contends her completion of parenting classes, group and individual therapy, is further proof that she has taken full responsibility for her actions, which led to D.C.'s removal, as well as indicative of her exercise of good parenting judgment in addressing her shortcomings. While acknowledging N.C.'s compliance with services it has offered, the Division maintains that her compliance does not equate to parental fitness. It noted that she has demonstrated an extensive history of exposing D.C. to individuals who have not had D.C.'s best interests, or her own best interests in mind.This resulted in D.C. suffering a fractured arm and witnessing a violent confrontation involving N.C. and others in their home.

The trial court credited the testimony presented by the expert witnesses who agreed that the crux of N.C.'s inability to eliminate the risk of harm she poses to D.C. is directly related to her personal associations. The record fully supports these conclusions. Prior to the Division's first intervention into N.C.'s parenting of D.C. in 2007, N.C. had undergone psychological evaluations in connection with the pending kinship legal guardianship proceedings related to A.C. and E.B. After the Division removed D.C. from her custody in 2007, N.C. underwent a number of additional psychological evaluations where it was noted in each report that her judgment in relationships impacted her ability to safely parent her children. These conclusions were consistent with opinions reached by other experts in earlier evaluations.

In one such evaluation, conducted August 21, 2007, Dr. Donna LoBiondo opined that N.C.'s greatest challenges to parenting resulted from her "chronically poor judgment," which results from a "combination of emotional dependence, immaturity, and low intellectual functioning." When she re-evaluated N.C. in June 2012, Dr. LoBiondo expressed the opinion that N.C. lacked the ability to "gauge or filter those who would treat her well from those who would use her."

Similarly, Dr. Antonio W. Burr, who performed a number of psychological evaluations of N.C. concluded in 2008 that her "dependency needs, low self-esteem and borderline intelligence ma[d]e her a very poor candidate to care for her children." He re-evaluated N.C. in 2009. Although he recommended reunification with D.C. at that time, he opined:

It is important to note that [N.C.], in the absence of male partners who bring dysfunctionality into her life, is capable of thinking in common sense ways, and is also capable of adjusting her judgment and behavior to social rules and social expectations. However, in situations where she believes her dependency needs might be potentially met, she uncritically and unquestioningly opens her heart and her home to these very problematic individuals. These attachments represent a potential risk to the child.

He once again noted that her choice of romantic partners undermined her ability to provide stability to her children.

The trial court credited Dr. Smith's testimony expressing concern over N.C.'s relationships with people with criminal backgrounds and also credited the doctor's opinion that "there was no benefit to continuing to delay permanency for D.C." This credibility assessment is entitled to our deference. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007).

In the brief submitted on her behalf, N.C. argues that she cannot be characterized as exhibiting a lack of judgment because of her association or involvement with unpredictable individuals with whom she had no knowledge of their criminal histories. However, even harm inflicted by another individual, including psychological harm, is relevant and as the doctors opined and the trial court found, indicative of an inability to provide a safe and nurturing environment for D.C. Thus, there was substantial, credible evidence in the record to support Judge DeCastro's findings as to the second prong of the best interests test.

B.

Turning to the fourth prong, N.C. argues that it is clear from visitation records that she maintains a strong bond with D.C. and that it was only after he was removed from her custody and told that she "did a bad thing" and needed to "learn her lesson" that he became reticent and unable to know what to make of interacting with her. She asserts that although D.C. has expressed a desire to remain with his grandmother, his reasons are unclear and, therefore, are parroted opinions of his grandmother. Finally, she contends the testimonies provided by the experts were unreliable because they disregarded the observational notes from the bonding evaluations, and were colored by bias in favor of the agencies who retained them. In contrast, she maintains more weight should have been accorded to the observations made by Catholic Charities during her visits with D.C. because these observers were not being compensated to make observations in contemplation of testimony on behalf of any of the parties in this litigation.

The fourth prong requires proof that termination of parental rights will not do more harm than good and "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. If a child can be returned to the parent without endangering the child, "the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986)). That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

In establishing the fourth prong of the "best interest" test by clear and convincing evidence, the Division is required to "offer testimony of a well-qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation of the child[ren]'s relationship." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009) (quoting J.C., supra, 129 N.J. at 19) (internal quotation marks omitted)).

A "concomitant finding of parental fault" also is required. N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 74, (App. Div. 2010). However, where "a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and the child has bonded with the foster parents who have provided a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.

The issue before the trial court was not the absence of a strong parental bond between N.C. and D.C. Dr. Smith noted that D.C. and N.C. interacted warmly with each other, and N.C. appeared to be nurturing. Dr. Winston found that there was a positive, affectionate bond between N.C. and D.C. Neither expert found, however, that this bond rose to the level of a secure emotional attachment that outweighed the secure and safe emotional attachment D.C. experiences with his maternal grandmother. Thus, even if Judge DeCastro were to have completely disregarded D.C.'s expressed preference to remain with his maternal grandmother, the evidence she credited clearly and convincingly established that D.C. feels safe with his grandmother and that the lack of permanency with his grandmother will cause further harm.

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. It is, concededly, a "painfully difficult" decision that necessarily requires expert opinions, but is ultimately vested in the trial judge who is most familiar with the case. Ibid. (quoting J.C., supra, 129 N.J. at 25. Thus, terminating N.C.'s parental rights will cause harm to D.C., but that will not be greater than the harm that will result by delaying permanency. N.C. has failed to provide any evidence, expert report or opinions, or witnesses that support reunification and would not result in child endangerment. See A.W., supra, 103 N.J. at 608.

The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare 154 N.J. 394, 413 (1998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411 12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 N.J. Super. at 259 (citing D.M.H., supra, 161 N.J. at 382).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279. Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that D.C.'s best interests require termination of N.C.'s parental rights. We discern no basis to disturb those findings.

Affirmed.

1 D.C.'s biological father has never been confirmed. The identified father was ruled out following paternity tests and the putative father was never located and, according to N.C., is deceased.