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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5682-11T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

V.

M.M.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF X.E.M.,

a minor.

________________________________________________

January 10, 2014

 

Submitted December 10, 2013 Decided

 

Before Judges Messano and Sabatino.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-161-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor X.E.M. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

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

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

 

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

 

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

[N.J.S.A. 30:4C-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

 

Following the guardianship trial in this case, the judge concluded that the Division had proven all four statutory standards and entered an order terminating the parental rights of defendant, M.M. ("Mary"), to her son, X.E.M. ("Xander").2 The parental rights of Mary's husband and Xander's father, E.M., were also terminated, but he has not filed an appeal.

Before us, Mary contends that the Division failed to prove all four statutory prongs by clear and convincing evidence. Both the Division and the Law Guardian argue that the evidence was sufficient and urge us to affirm the judgment.

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).

"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" which are evaluated by application of the four standards contained in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The four prongs "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (internal quotation marks omitted)).

We have considered the arguments raised by defendant in light of the record and applicable legal standards cited. Because the proofs as to prong four were insufficient, and considering how events have significantly changed since the judgment was entered, we reverse and remand for further proceedings consistent with this opinion.

I.

The Division first became involved with defendant's family in November 2003, when Mary made a report regarding Xander, who was then nearly eighteen months old. Mary claimed E.M. had taken her son two months earlier, and when she saw Xander, he was dirty with scratches on his face. Mary also reported that E.M. often brought prostitutes home and used and sold drugs. The Division investigated and determined the referral was not substantiated. However, a second anonymous referral made three days later resulted in an investigation by the Division that substantiated a finding of neglect against E.M.

On March 8, 2008, the Division received an anonymous referral that Mary and Xander had not been seen for two weeks, and Mary was rumored to have abandoned her son. The Division's attempts to contact the family were initially unsuccessful. However, in December 2008, Mary and Xander were located at Apostle's House, a shelter for women in Newark. Mary indicated that she had been living in Puerto Rico with Xander, who was diagnosed with attention deficit hyperactivity disorder (ADHD) in 2007. She returned to the United States with her son in August 2008.

The Division began monitoring the family, offering Mary, who was pregnant, prenatal care and parenting classes.3 However, on February 23, 2009, the Division received a referral from Apostle's House that Mary was terminated from the program for non-compliance. The reporter also believed that Mary was not appropriately dispensing Xander's medication.

On June 23, 2010, the Division received an anonymous report from the Madison Avenue School. Xander had not been in school for two weeks. Mary had been asked to submit paperwork so Xander could receive special services in the upcoming school year, but, despite phone calls and visits to her home, Mary was uncooperative. Mary eventually submitted the paperwork, but it was too late for Xander to be evaluated before the start of the new school year. Following the Division's investigation, Mary received counseling, and a case plan was developed.

On July 9, 2010, Irvington Police advised the Division that Mary's two youngest children, A.L. ("Alan") and A.D. ("Alice"), ages four years and eleven months old respectively, had been left alone at home. At approximately five o'clock in the morning, Alan flagged down a police car, telling the officer that he did not know where his mother was. Officers found Alice alone in the apartment, which was in disarray. The two children were brought to the hospital and medically examined; both were in good health.

The Division's workers met with Mary at the police department. She stated that she left Alan and Alice alone because she was called in for a new job as a home health assistant and could not find a babysitter. She had left for work around 10:30 p.m. and intended to return by 7:30 a.m. Mary further stated that she needed money to afford another apartment since her temporary rental assistance was about to expire.

Mary had left Xander with her neighbors. However, she told the Division that she did not trust them to take care of her younger children, particularly Alice, because the neighbors drank and used drugs. As a result of the incident, Mary was charged criminally with two counts of endangering the welfare of her children, N.J.S.A. 2C:24-4 A. 4

The Division removed the children from Mary's care on an emergent basis, and, on July 12, filed its verified complaint seeking care, custody and control of all three children, which the Family Part judge granted the same day. Mary was provided with supervised visitation through the Tri-City Peoples Corporation (Tri-City), and a psychological evaluation was ordered.

Mark Singer, Ed.D., conducted a psychological evaluation of Mary on August 2, 2010. Mary admitted that she had left the children home alone in the past when she went to work. She also told Dr. Singer that she "can't handle boys," and suggested that Xander's godmother would take custody of him and Alan. However, Mary wanted custody of Alice, who was breastfeeding at the time.

Dr. Singer concluded that Mary was depressed, overwhelmed and lacked the "emotional resources needed to care for her children," due in part to her abusive childhood and relationships with men. He recommended that, prior to reunification, Mary continue her supervised visits with the children, comply with all of Xander's medical protocols, complete parenting skills classes, participate in individual therapy and a support group for parents of children with ADHD, maintain appropriate employment and resolve the criminal charges against her.

By October, Mary had completed six of ten parenting classes at Babyland Family Services, and it was recommended she complete additional classes to increase her self-esteem and confidence. However, Inneabell Vega, the Division's caseworker, testified at the guardianship trial that Mary failed to complete the additional program. Mary also attended eight individual counseling sessions at the Family Services Bureau (FSB) from September 20 through November 22, 2010, but missed five other sessions during that time period. FSB indicated that Mary was motivated and "showed concern for the well-being of her children . . . . " However, she missed several appointments in January and February of 2011 and was terminated.

Mary participated in supervised visitation with her children at Tri-City from August 7, 2010 to January 6, 2011. While the children missed her and were happy to see their mother, Mary did not attend scheduled visits routinely in January, February and March 2011. She indicated that, due to work obligations, she needed to scale back the number of weekly visits. Mary also refused to provide the Division with her current address or employment information.

Meanwhile, in October 2010, the Division began to investigate Xander's possible placement with his paternal grandmother, I.M. ("Iris"), in Puerto Rico. Mary was supportive of this possibility. In the same month, Mary entered into a stipulation at the fact-finding hearing acknowledging that her conduct constituted abuse or neglect.

In December 2010, Dr. Singer conducted psychological evaluations of Xander and Alan. Dr. Singer opined that, "both children would have a reaction to being separated [from their mother or each other], . . . but with appropriate support . . . the children would not likely experience significant and enduring harm."

In March 2011, Mary was psychiatrically evaluated by Samiris Sostre, M.D. Sostre observed that Mary understood leaving her children alone at home was a poor choice, but she did not understand the seriousness of the matter or the risks involved. Sostre concluded there was no evidence that Mary suffered from a psychiatric disorder that required pharmacological treatment, and her negative personality traits should be addressed through counseling.

In June 2011, concluding that Mary had failed to comply with services provided by the Division, the judge approved a permanency plan of termination followed by Xander's adoption by Iris. The order reflects Mary's agreement with the plan. On June 23, the Division filed its verified complaint seeking guardianship of Xander.5

On August 20, 2011, Xander was flown to Puerto Rico and placed with Iris. In the ensuing months, the Department of Education in Puerto Rico conducted psychological and educational evaluations of Xander. Diana Trail, another Division caseworker who accompanied Xander to Puerto Rico, testified at the guardianship trial that the Division offered Mary visitation and telephone contact with Xander once he was in Puerto Rico. While Mary initially maintained phone contact with Xander, Trail testified that when the Division offered her visitation with her son, Mary "said that she was interested, but she never came forward to set up . . . the visitation schedule."

Mary had no physical contact with Xander after July 2011, and she failed to attend any of the court hearings after August. During that time, Trail testified that Mary did not maintain contact with the Division, which was also unaware of her whereabouts. The guardianship trial was held on May 30, 2012 and June 1, 2012. Mary was not present either day.

Vega, who worked with the family from July 2010 to June 2011, testified regarding Mary's failure to comply with and complete many of the services offered by the Division. Mary's non-compliance resulted in the Division's decision to change its plan from reunification to termination.

Dr. Singer also testified as the Division's expert. He opined that after two years of services, Mary was still unable to parent her children independently, which suggested a "very poor prognosis" for her to become a viable parent in the foreseeable future. Dr. Singer reiterated that Mary "doesn't have the desire to care for [Xander]." Dr. Singer believed Mary's refusal to avail herself of the Division's offer to arrange for visitation with Xander while he was in Puerto Rico, was "consistent with what she's telling us."

Notably, when asked if he agreed with the Division's plan to terminate Mary's parental rights followed by Iris's adoption by Xander, Dr. Singer stated:

I do, but I want to be clear. As I sit here today with the information I have[,] I certainly support that. But to be clear[,] I've never met the relative[] that [Xander] is living with. And . . . no bonding evaluations have been done. [C]ertainly the psychological data is very consistent in terms of these individuals, [Mary and E.M.] not being viable parenting options for [Xander] in the future, in the foreseeable future. And[,] having had the ability to evaluate [Xander] in the past, and to look at that . . . point in time the child's level of anxiety and self-esteem, low self-esteem, certainly being able to provide [Xander] with a permanent consistent environment would serve [Xander] well. Neither of his biological parents would be able to do that in the foreseeable future.

 

[(Emphasis added).]

 

No witnesses were called by defendants.

II.

A.

Mary contends that the Division's proofs as to the first three prongs of the statutory test were insufficient. As to prong one, Mary asserts that leaving her children home alone overnight while she went to work exhibited poor judgment, but there was no proof any child suffered physical or emotional harm.

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." K.H.O., supra, 161 N.J. at 348. 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 and citations omitted).

The judge adequately set forth his factual findings regarding the first prong of the best interests test. Mary acknowledged not only leaving Alan and Alice alone, but also leaving Xander with neighbors who she suspected were abusing alcohol and drugs. The judge further credited Dr. Singer's testimony that Mary's inability to appreciate the risks of her behavior bode ill for her ability to prevent future harm through adequate parenting. Lastly, although not determinative, we note that Mary stipulated her conduct amounted to abuse and neglect of the three children.

We also reject Mary's argument that she substantially complied with services provided by the Division, and, therefore, proof regarding the second prong was insufficient. 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, the judge found Mary's "failure to visit" Xander and "maintain contact with the Division" to be "[o]f great concern." He noted Mary had made no "efforts since July 2011 to see her son." The judge also noted Mary's failure to actually complete the various programs to which she was referred. He concluded that Mary "would likely continue to struggle to muster the resources needed to respond effectively to the demands involving parenting." We find no basis to disturb the judge's findings or the legal conclusion he drew from the evidence.

As to prong three, Mary acknowledges "the Division did provide a significant number of services," but claims that "it failed to direct those efforts toward reunification [and] encouraged adoption instead." We again disagree that the prong three proofs were insufficient.

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," as actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure. . . ." 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.

In this case, the judge exhaustively set forth the services provided by the Division. He further noted that it "considered additionally relative resources that were presented by [Mary]." We agree with the judge's findings and conclusions in this regard. To the extent we have not directly addressed any of Mary's contentions on this point, they lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

B.

Before turning to the arguments raised regarding the fourth prong of the statutory test, we set forth the judge's findings and conclusions after trial.

Noting that Xander had been in placement for two years and with Iris in Puerto Rico since August 2011, or approximately ten months, the judge concluded the child was "doing well." He observed that a tutor had been assigned, and Xander's grades had improved. The judge further found that Iris "has provided him with all of his needs and is committed to adopting him. This would allow [Xander] to have a permanent, safe, and loving environment that he deserves."

The judge also stated:

[I]t cannot be ignored that adoption is feasible and likely in this case based on all the evidence and the testimony presented. There is no probable expectation in the ability of [Mary and E.M.] to make the necessary changes to provide [Xander] with a safe and stable home. Both have failed to have any contact with the Division aside from sporadic telephone calls for a significant period of time, and have failed to attend several court hearings.

 

The Court finds that the Division has proven by clear and convincing evidence that termination of parental rights will do no more harm than good.

 

. . . .

 

The relationship with the grandmother seems to be a very positive and good one. I find that to be true. Even if there weren't a viable option for adoption, . . . terminating the parental rights would be no more harm than . . . good in terminating them, especially in a case like this. [B]ut, in this case, we have a grandmother who is providing all of the services and the child is doing better.

 

The judge concluded the Division had met its burden of proof as to prong four. Without much specificity, Mary argues that the Division's proofs were inadequate.

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." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007).

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).

However, "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but 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. And, "courts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." Id. at 109 (citing A.W., supra, 103 N.J. at 610-11). "Such harm may occur when a child is cycled through multiple foster homes after a parent's rights are severed." Ibid.

This case does not involve "dueling expert opinions about whether a child is more strongly bonded to his biological parents than to his foster parents." Ibid. Dr. Singer, the only expert witness, could render no such opinion.

Dr. Singer opined that he favored termination of Mary's parental rights followed by adoption by Iris. However, Dr. Singer carefully and candidly stated that he had no ability to assess Xander's relationship with Iris because no bonding evaluation was ever done. While he was unequivocal regarding Mary's inability to parent in the foreseeable future, his opinions regarding Xander and his relationship with Mary were based on an interview he conducted in December 2010, some eighteen months before testifying. Dr. Singer acknowledged some of the positive aspects of Xander's relationship with Mary and Alan, and noted he would like to have known more about the telephone contact Xander and Mary shared while the child was in Puerto Rico. Dr. Singer was never asked to weigh the relative benefits and harms of termination if, in fact, Iris failed to adopt Xander. We do not share the Division's assertion that the judge definitively concluded termination was preferable, even if Xander was not adopted by his grandmother.

Events since entry of the judgment strengthen our conclusion that the prong four evidence, less than clear and convincing at the time of the guardianship trial, needs to be re-evaluated. Although not addressed by Mary, we are advised by the Division that in July 2012, approximately one month after the judgment was entered, Iris had spinal surgery. A series of orders in the Division's appendix trace what has happened since.

An order dated July 31, 2012, reflects that the Division was advised Iris could no longer care for Xander because of "health issues." A second post-judgment order, dated August 15, 2012, indicates that Xander was placed in a foster home in Jersey City. His godmother, Mary's cousin, "presented herself as a placement" resource, and the Division was assessing the home and performing background checks.

A third post-judgment order dated November 29, 2012, reveals the assessment of Xander's godmother continued. The Division was seeking a waiver regarding the criminal conviction of a household member, and it was also awaiting "the disposition from criminal charges for the [g]odmother." The next order, dated February 7, 2013, indicates that Xander had been placed with "his relative," in December.6 However, the foster mother was "having [second] thoughts." The Division was providing services to Xander, who had started in a new school and needed a new child study team evaluation because prior evaluations conducted in Puerto Rico were not "accepted."

The last post-judgment order in the appendix is dated April 4, 2013. It reflects that the foster mother had not attended certain training and asked the Division to remove Xander from her home. The Law Guardian indicated that Xander, now eleven years old, had a difficult time adjusting to the foster placement, was upset when he found out that his relative did not want to adopt him and stated "he does not wish to be adopted." The order also indicates a permanency hearing was to occur on June 4, 2013, and additional therapy and psychiatric reports were to be provided.7

Thus, based upon the record before us, the termination of Mary's parental rights has done little to achieve the permanency in Xander's life that is the Division's paramount goal in such litigation. E.P., supra, 196 N.J. at 110-11. We recognize that unlike the mother in E.P., who, despite her shortcomings, maintained a strong emotional relationship with her daughter, Mary failed to do the same during the pendency of much of this guardianship litigation. Whether that was due to Mary's own expressed belief that she could not "handle" boys, or whether it was due to the geographic distance between her and Xander as a result of the Division's placement of the child in Puerto Rico, cannot be assessed on this record.

We hasten to add that our decision is not a criticism of the Division's efforts in this case, which were both reasonable and diligent. However, circumstances clearly have overtaken the original plan for Xander's permanent placement, and the challenges presented in ultimately finding permanency are formidable. Xander is now eleven, and, as of April of 2013, the Division was once again searching for a placement, in part, because of the challenges posed by his behavior. He continues to require tutoring and counseling. See E.P., supra, 196 N.J. at 111 (noting the circumstances facing the thirteen-year old child in that case who continued being placed in foster homes and exhibited behavioral problems that made permanent placement difficult and unlikely).

Based upon the particular circumstances of this case, we reverse the order terminating Mary's parental rights to Xander and remand the matter to the trial court for further proceedings. The Division must consider Mary's current situation and any changes in her life since the termination judgment, and Xander's present placement and any relationship that he may have developed with a foster parent or family. Thereafter, the Division must consider the appropriate course of action. Id. at 112. In its considered judgment, it may begin to provide services again to Mary with an eye toward reunification.

If the Division decides termination of parental rights is still warranted, the judge shall conduct a hearing, the primary focus of which should be the adequacy of the current evidence regarding prong four of the statutory best interests test. We are satisfied that the proofs regarding prongs one through three were clear and convincing, and the remand hearing need not address them again, except to the extent those proofs may bear on the prong four determination. We leave the conduct of any such future proceeding to the sound discretion of the Family Part.

Reversed and remanded. We do not retain jurisdiction.

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

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

3 Mary had two other children at the time, one older and one younger than Xander. Both were living with their fathers.

4 Testimony at the guardianship trial revealed that Mary was admitted to the Pre-trial Intervention Program, but she had not been compliant with the program's requirements.

5 The complaint indicates that Alan, nearly six at the time, remained in a resource home, and Alice, nearly two, was in the custody of her father. Neither child was the subject of the guardianship complaint.

6 It is not entirely clear, but the order refers to the foster mother as a "cousin." We assume that to be the previously-referenced godmother.

7 We have no further information as to subsequent events.