DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.L.B.

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NOT FOR PUBLICATION WITHOUT THE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.

K.L.B.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF F.M.K. and L.K. III,

Minors.

_______________________________________

October 27, 2015

Submitted October 20, 2015 Decided

Before Judges Yannotti, St. John and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-36-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Gregory K. Byrd, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cameryn J. Hinton, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors F.M.K. and L.K. III (Sean Lardner, Designated Counsel, on the brief).

PER CURIAM

K.L.B. appeals from an order entered by the Family Part on October 3, 2014, terminating her parental rights to F.M.K. ("Fiona") and L.K. III ("Louis").1 We affirm.

I.

We briefly summarize the relevant facts and procedural history. On November 4, 2011, after investigating a report that K.L.B. and her paramour, A.G., had physically abused Fiona and Louis, the Division of Child Protection and Permanency ("Division")2 filed an order to show cause and verified complaint in the trial court, seeking care, custody and supervision of the children. The court granted the application. The children were placed in the care of their paternal great-grandparents, E.J. and F.J., and thereafter the Division provided various services to K.L.B. and the children.

In February 2012, the children were examined by Dr. Steven Kairys ("Dr. Kairys"), who determined that Louis had not bruised his genitals while playing with a toy guitar, as K.L.B. and A.G. claimed. Dr. Kairys indicated that Louis also had bruises to the side of his head and eyes that were consistent with physical abuse. The doctor found that Louis did not have a seizure-causing condition, despite K.L.B.'s claim to the contrary, and he was behind other children of his age in his development.

In addition, Dr. Kairys found that Fiona was legally blind in one eye, due to years of medical neglect. According to the doctor, Fiona had some developmental issues. She also had certain behavioral problems, which dated back to the time when she claimed she had been touched inappropriately by J.C., who was K.L.B.'s boyfriend at the time.

In April 2012, K.L.B. and A.G. both were charged with endangering the welfare of a child. A.G. also was charged with aggravated assault, and K.L.B. was charged with child neglect. The record does not disclose how these charges were resolved. It appears, however, that K.L.B. spent time in jail on these charges.

In September 2012, K.L.B. stipulated that that the children had been abused or neglected as a result of her failure to protect them. K.L.B. admitted she had allowed A.G. to physically discipline both children inappropriately. K.L.B. also admitted she medically neglected Fiona by failing to get her medical care in a timely manner, and this resulted in severe damage to the child's eyesight. K.L.B. further admitted that she medically neglected Louis since she did not get him timely medical attention for his bruises.

In January 2013, the Division filed its guardianship complaint, seeking termination of K.L.B.'s and L.K. II's parental rights to Fiona and Louis. The Division continued to provide services to K.L.B. and the children. In May 2014, L.K. II voluntarily surrendered his parental rights to the children so that they could be adopted by E.J. and F.J.

Thereafter, the court conducted a trial on the Division's guardianship complaint. The Division presented its expert reports and other documentary evidence, as well as testimony from psychologist Dr. David Brandwein ("Dr. Brandwein"), two Division workers, and E.J. In response, K.L.B. presented testimony from Dr. Jesse Whitehead. She also testified on her own behalf. The Law Guardian for the children supported termination of K.L.B.'s parental rights.

On October 3, 2014, after hearing counsels' oral arguments, the judge placed a lengthy oral decision on the record. The judge reviewed the testimony and documentary evidence, and concluded that the Division had established by clear and convincing evidence all four of the criteria for termination parental rights under the best interests of the child standard, codified in N.J.S.A. 30:4C-15.1a. The judge entered an order dated October 3, 2014, terminating K.L.B.'s parental rights to Fiona and Louis, and granting guardianship of the children to the Division so they could be adopted by E.J. and F.J. This appeal followed.

II.

On appeal, K.L.B. argues that the order terminating her parental rights should be reversed because the Division failed to establish all four of the statutory criteria for termination of her parental rights.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citation omitted). Moreover, "[t]he balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

Under that standard, an individual's parental rights to a child may be terminated if the Division establishes all of the following criteria

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

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;

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

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

[N.J.S.A. 30:4C-15.1a.]

The statutory criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. Furthermore, the Division must establish each prong of the statutory test with clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).

Here, K.L.B. does not challenge the trial court's findings on prongs one and three. She thus acknowledges that the children's safety, health or development has been harmed by their relationships with her. N.J.S.A. 30:4C-15.1a(1). She also acknowledges that the Division made reasonable efforts to address the circumstances that led to the children's removal from her custody. N.J.S.A. 30:4C-15.1a(3). K.L.B. maintains, however, that the Division did not present clear and convincing evidence to establish the other two prongs of the statutory test.

We note that the scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth &Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, we must accord substantial deference to the findings of the Family Part due to that court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

A. Prong two of the best interests of the child test.

K.L.B. argues that the Division failed to establish prong two of the statutory test, which requires the Division to show that she is unwilling or unable to eliminate the harm to the children. N.J.S.A. 30:4C-15.1a(2). The key issue under prong two is "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 603 (1986).

K.L.B. argues that the termination of parental rights was improper because she was willing and able to eliminate any harm to the children. K.L.B. asserts that she has been compliant with the services the Division provided to her, and contends that the trial judge erred by finding that such compliance has not been fruitful. K.L.B. contends she made "very quantifiable changes to her life." She asserts that, if the Division believed there were other "risks" to the children that had to be addressed, she should have been provided an opportunity to do so. We are unpersuaded by these arguments.

Here, the judge placed great weight on Dr. Brandwein's psychological report and testimony. As the judge noted in her decision from the bench, Dr. Brandwein conducted numerous psychological tests upon K.L.B. He diagnosed bipolar disorder and non-specified personality disorder, which includes anti-social, narcissistic and histrionic features.

Dr. Brandwein noted that defendant minimized her prior neglect of the children and time she spent in jail on criminal charges related to that neglect. In addition, K.L.B. had allowed Fiona to remain in the company of registered sex offenders, even after the child had made allegations of sexual abuse regarding K.L.B.'s boyfriend.

Dr. Brandwein also stated that K.L.B. "seems to have little to no insight into how her psychological symptoms and personality features" affect her ability to become selfsufficient and stable to the point where she could make proper choices for her children. The doctor stated that the services provided to K.L.B. did not appear to have helped her, and her chronic mental health and parenting problems were unlikely to be remedied sufficiently to warrant reunification with the children.

Dr. Brandwein further opined that K.L.B. would be at high risk for further involvement with child welfare authorities due to future abuse or neglect, and this would be harmful to the children's physical and psychological development. Thus, the record supports the trial judge's finding that, despite K.L.B.'s participation in certain services, she was unwilling or unable to eliminate the harm that led to the children's removal from her custody.

K.L.B. argues, however, that the trial judge erroneously viewed her personality disorders as "unchangeable," thereby warranting termination of parental rights. We disagree. The judge did not state that personality disorders are unchangeable or require the termination of parental rights in every case.

K.L.B. further argues that the judge erroneously presumed that parental rights can be terminated even in the face of marked progress regarding those with personality disorders, and that she was not provided sufficient opportunities to address these issues. The judge did not, however, base her decision on any such presumption.

As we have noted, the judge based her decision upon the evidence presented at trial which clearly and convincingly established that, even though K.L.B. had made some progress in services, she was unwilling or unable to eliminate the harm to the children. Thus, there is sufficient credible evidence in the record to support the judge's finding on prong two of the statutory test.

B. Prong four of the statutory test.

Next, K.L.B. argues that the Division failed to establish that termination of her parental rights would not do more harm than good, as required by the fourth prong of the statutory test. N.J.S.A. 30:4C-15.1a(4). We note that the fourth prong does not require a showing that "no harm" will result from severing the parental ties, but "whether, after considering and balancing the two relationships, the child will 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." K.H.O., supra, 161 N.J. at 355.

K.L.B. contends that the evidence established that the children would be harmed if her parental rights are terminated, and the harm cannot be addressed by "other relationships." She maintains that there was no evidence that the children would be harmed if she were permitted to continue supervised visitation while the children are in a kinship legal guardianship ("KLG") relationship with E.J., the children's paternal great-grandmother.

In addressing the fourth prong, the judge placed great emphasis upon Dr. Brandwein's bonding evaluations. In his report concerning his initial bonding evaluations, Dr. Brandwein noted that when the children met with K.L.B., they had repeatedly treated her with disrespect. The children had cursed K.L.B., called her names, and spit in her face. The doctor thought these behavioral difficulties were likely a manifestation of the abuse and neglect the children had experienced while in K.L.B.'s care. Dr. Brandwein also stated that the children were bonded psychologically with their paternal great-grandparents, and their individual bonds with them were secure.

In his subsequent bonding evaluations, Dr. Brandwein found that there had been some improvement in the children's behavior toward K.L.B. The doctor noted some indication that Fiona was seeking out affection, but Louis remained hesitant. He indicated that that the bonds between the children and K.L.B. were not secure, and it was highly unlikely that severing those bonds would cause them grief or result in enduring or persistent harm.

The judge noted that Dr. Brandwein's bonding evaluations showed that the children had established bonds with their paternal great-grandparents, and if they are allowed to adopt the children, they would be able to provide them with an environment in which they could grow and develop to their full potential. The judge found that, based on the evidence presented, there was "no indication that termination of parental rights would do more harm than good[,] particularly in light of the stellar job that the great-grandmother has been doing in trying to care for these children." We are convinced that the record supports the judge's finding that the Division had established prong four with clear and convincing evidence.

C. KLG.

K.L.B. argues that the trial judge should have determined that KLG was more appropriate for the children than termination of her parental rights. K.L.B. maintains the judge should have considered the long-term effects of her decision, and taken E.J.'s age into account. She argues that it would be better to have a KLG, and allow her visitation, so that the children's best interests could be re-evaluated in the future, if E.J. becomes incapable of caring for the children on her own.

However, KLG is an option only when adoption is "neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). KLG "was not meant to be a substitute for the permanency of adoption but, rather, to provide as much permanency as possible when adoption is not feasible or likely and a relative is willing to care for the child." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 510 (2004).

Here, the evidence presented at trial established that the paternal great-grandparents are willing and able to adopt the children. They told the Division they were not interested in KLG, and they did not want to face the risk that K.L.B. would take the children away from them. Thus, in this case, the judge correctly determined that KLG was not a substitute for the "permanency of adoption." Ibid.

K.L.B. further argues that the termination of her visitation with the children would harm them. Dr. Brandwein testified, however, that any harm resulting from termination of K.L.B.'s parental rights would not be enduring or permanent. Moreover, although not required to do so, E.J. indicated that she intended to maintain visits between K.L.B. and the children after E.J. and F.J. adopt them.

Affirmed.

1 We refer to K.L.B. and certain other persons by initials, and the children by pseudonyms, in order to protect the identity of the children.

2 Until June 29, 2012, the Division was known as the Division of Youth and Family Services. L. 2012, c. 16, eff. June 29, 2012.