NEW JERSEY DIVISION OF CHILD PROTECTION and PERMANENCY v. R.L Sr.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5300-13T2

A-5302-13T2

NEW JERSEY DIVISION OF CHILD

PROTECTION and PERMANENCY,

Plaintiff-Respondent,

v.

R.L., Sr. and K.D.E.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.T.L. and K.K.E.,

Minors.

__________________________________

December 2, 2015

Submitted October 21, 2015 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. FG-07-0116-14.

Joseph E. Krakora, Public Defender, attorney for appellant R.L., Sr. (Victor E. Ramos, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant K.D.E. (Theodore J. Baker, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors R.T.L. and K.K.E. (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

The mother, K.D.E.1 of both children and father, R.L., Sr., of the younger child, R.L. (Raheem), appeal from a June 26, 2014 order terminating their parental rights.2 Both Raheem and K.K.E. (Keon) have an emotional bond with their mother. Raheem's father has not been a presence in his life. No family is currently waiting to adopt these boys, both of whom have special needs, although they desperately need a permanent home. Because their only chance for permanency is through adoption, we affirm.

I

In April 2011 the New Jersey Division of Child Protection and Permanency (Division) obtained custody of then nine-year-old Keon, who was on the autism spectrum and had developmental and social delays, and then five-year-old Raheem, who also suffered from behavioral issues. The Division had investigated several allegations of K.D.E.'s drug abuse in 2007 and 2010, but determined the allegations of neglect to be unfounded.

In January 2011 the mother's adult daughter reported that her mother was using crack cocaine. The mother began an outpatient drug program, but was reported to have tampered with her urine samples. In April 2011 she tested positive for cocaine and marijuana, at which time the Division obtained custody of the two boys. The mother was discharged from her program due to her lack of compliance. She began another program, but again tested positive for marijuana. In June 2011 she was accepted into the Essex County Family Drug Court (FDC), and was sent to another drug program, Family Connections. She was later referred to several other drug and counseling programs.

When Raheem's father appeared in court he tested positive for marijuana. The Division subsequently recommended that he attend an outpatient program, which he attended sporadically. Although he was allowed weekly supervised visits with Raheem, he did not attend any visits. He has an extensive criminal history, as well as a history of violence towards the mother. The mother had obtained a final restraining order (FRO) against him, claiming he had stabbed her seventeen times, slit her throat and cut her fingers.

In June 2012 the mother gave birth to another child.3 Both she and the newborn tested positive for cocaine, and the mother admitted using cocaine during the pregnancy. In March 2013 she tested positive for alcohol while in court and admitted to having used alcohol excessively. She subsequently began alcohol counseling in another outpatient program.

In May 2013 the Division submitted a permanency plan for adoption that was rejected by the court. Approximately a month later, the court found that the mother had relapsed while in a substance abuse program and, as a result, accepted the Division's permanency plan for adoption of the boys.

Because of the extreme animosity between the two boys, they were placed in separate resource homes. Both boys were placed in new homes repetitively throughout the litigation. Relatives who cared for the children were unable to make a commitment to the boys for various reasons, including their difficulty in dealing with the children's mother. Raheem was behaving in such a disruptive manner that he was hospitalized after being diagnosed with disruptive behavior disorder. He was later given various other diagnoses and hospitalized several more times. In November 2013 Raheem was placed in Fisher Hall, a mental health residential facility, where he responded well to the program.

Dr. Frank Dyer, a Division expert psychologist with numerous professional certifications and over thirty years of experience in the field, found the mother had significant issues that impede her ability to parent successfully. She continued to choose abusive and dangerous partners who would place the children in danger, abused drugs, and rationalized her drug use both because she had been abused and exploited and because of her infant daughter's death. She suffered from a personality disorder, post-traumatic stress disorder and depressive disorder. She had no realistic plan to care for the boys, relied on public assistance and did not understand the severity of her children's behavioral and emotional problems. She demonstrated both uneven compliance and active resistance to Division services. Dr. Dyer recommended that the Division not consider the mother as a viable candidate for custody of either child. In contrast, the Law Guardian's expert recommended that the mother be given another chance at rehabilitation in an inpatient program.

Dr. Dyer also evaluated the father and found that he had an extensive criminal history, an antisocial personality, poor impulse control, and was an abuser of drugs and alcohol. The father conceded to Dr. Dyer that he consumed one beer, a half-pint of vodka and a "bag" of marijuana every day. He believed he was justified in attacking the mother with a knife, because he had seen a man coming out of her room. His psychological profile had extremely negative implications for parenting. He was irresponsible, cared little for others and had little respect for rules, laws and regulations. Dr. Dyer opined that any child in his care would be exposed to volatile and violent behavior. Instead of permitting the father to assume responsibility for Raheem, Dr. Dyer recommended that the Division pursue adoption.

Dr. Dyer acknowledged that Raheem's chances of adoption were not "optimistic" given all of his emotional and behavioral problems. Raheem had virtually no attachment to his father, although he is attached to his mother. He found Keon to be particularly vulnerable to his mother's poor parenting due to his disabilities. Further, Dr. Dyer testified that the children had a "desperate and critical need for permanency" and that the mother had an extremely poor prognosis for change.

Robin Harris, a Division adoption specialist with twenty-five years of experience, testified that, once the children were freed for adoption, she thought they would be able to be placed through the "select home adoption process." Harris explained that the pool of potential adoptive families would expand once the boys were freed for adoption and that, although the Division attempts to keep siblings together, it would consider separate placements if necessary. Harris opined that, after they were freed for adoption, using the "select home" adoption program, she "feels like" an adoptive home would be found for the boys. Harris testified that she was confident that placement would occur despite the boys' ages and behavioral issues.

II

Parents have a constitutional right to a relationship with their children. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). This right must be balanced, however, against the State's parens patriae responsibility to protect children. Ibid. The State's power to act in place of parents is limited to situations in which the parent or custodian is unfit. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). When a child's physical or mental health is jeopardized, the State may take action. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

Under N.J.S.A. 30:4C-15.1(a), the following standards must be met by clear and convincing evidence before a court can terminate parental rights

(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 [or her] resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division 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.

When biological parents resist the termination of their parental rights, the court must decide "whether the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The State has the burden of proving "by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

Termination of parental rights "should not simply extinguish an unsuccessful parent-child relationship" without providing for a permanent relationship in the child's future. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 108 (2008) (quoting N.J. Div. of Youth & Family Services v. A.W., 103 N.J.591, 610 (1986)). Also, a child needs "association with a nurturing adult," and "permanence in itself is an important part of that nurture." Ibid.(quoting A.W., supra, 103 N.J.at 610). "[T]erminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." Ibid.(citation omitted). In fact, often, termination of parental rights does not result in a permanent placement for the child. Ibid.

We defer to the factual findings of the trial court because it has the opportunity to "make first-hand credibility judgments about the witnesses;" because it has a "feel of the case;" and because of the family court's "special . . . expertise in family matters." G.M., supra, 198 N.J. at 396 (internal citations and quotation marks omitted). "[T]he family court's decision to terminate parental rights" should not be disturbed "when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J.at 104 (citing In re Guardianship of J.N.H., 172 N.J.440, 472 (2002)). "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." Ibid. (quoting G.L., supra, 191 N.J.at 605).

III

The court found that all four prongs of N.J.S.A. 30:4C-15.1 were met. Prongs one and two were met because the children needed permanency and the mother had continued the same course of behavior throughout the litigation and had failed to correct the problems that resulted in the children being taken out of her home. Prong three was met because the Division made reasonable efforts toward reunification including visitation transportation, substance abuse assessments and treatments, psychological and psychiatric evaluations, therapy, counseling, medication monitoring, searching for fathers, relative assessments, sibling counseling, and having provided therapeutic treatment homes and residential facilities for the father. Prong four was met because the children's needs for permanency were more significant than the bond that their mother had offered. The court permitted weekly visits with the mother until an adoptive home was found. However, she was unable to visit due to her subsequent incarceration on an unrelated matter.

The court terminated parental rights because over a three-year period the mother had not been compliant with her substance abuse treatment and had failed to consistently take her psychotropic medication. According to the court, the children had "serious problems" and the family was "dysfunctional." The court found Dr. Dyer's conclusion "very credible and believable" that the mother's chance of recovery from addiction was "poor," given her past performance. The Law Guardian's expert's conclusion that the mother would benefit from an inpatient program was "terribly speculative" because it required a commitment that the mother did not possess. The court concluded that the only way to repair the damage that had been done to the children was to terminate parental rights so that permanency could be achieved.

IV

The mother argues that the court erred by terminating her parental rights because there is no designated adoptive home for the children. The Law Guardian, who is obligated to represent the express wishes of her clients,4 joins in the mother's argument, which is premised on the argument that the Division failed to prove the fourth prong of N.J.S.A.30:4C-15.1(a), that the termination of parental rights will not do more harm than good.

The Law Guardian agrees and cites E.P., supra, 196 N.J.at 107, for the proposition that when a child is mentally fragile and has a slim hope of adoption, terminating parental rights will do more harm than good. In E.P., the mother had serious substance abuse problems, but her daughter was almost thirteen years old, was psychologically fragile, had a slim hope of adoption and an enduring emotional bond with her mother. Ibid. Our Supreme Court determined that terminating parental rights would do more harm than good because the mother had been living in an apartment, was working as a waitress, was in a long-term relationship, had significant family support, and had not had a drug relapse in the past year. Id.at 111-12. Moreover, the child had been moved five times in the past two-and-one-half years and had expressed a strong preference to live with her mother. Ibid.

Here, unlike in E.P., the mother continued to test positive for drugs and alcohol throughout the litigation and during trial, had no job or stability and, even though the children may have had a reduced chance of adoption, neither one had expressed a strong preference for living with her.

The Law Guardian also cites New Jersey Division of Youth & Family Services v. L.M., 430 N.J. Super. 428, 448 (App. Div. 2013), in support of the argument that when an older child has mental health problems that stand in the way of adoption, termination of parental rights does more harm than good. L.M. can be distinguished because, there, the father was gainfully employed, had adequate housing and a stable home life, did not suffer from substance abuse problems, attended court proceedings, and submitted to Division services. Id. at 449-54. Here, by contrast, the mother has no employment, no stability, abuses drugs, and did not consistently comply with Division services. In fact, when the Division was attempting to reunify her with her children in May 2012 and again in January 2013, the process was aborted because she again abused drugs and alcohol.

We do not minimize the difficulty in finding a permanent home for the children given their behavioral and mental health issues. The Division adoption specialist testified, however, that despite these issues, based on her experience, the children could successfully be placed through the "select home" adoption program.

The mother failed to comply with services offered by the Division, failed to attain sobriety despite numerous substance abuse treatments and long-term attendance at FDC, and repeatedly tested positive for drugs and alcohol. Moreover, after she regained custody of Keon in December 2012, she lost custody less than one month later because of her alcohol abuse. She inconsistently took her psychotropic medication, which resulted in out-of-control behavior; undermined the children's caregivers; and had no plan for financial responsibility for herself or her children.

At trial, Raheem had already been placed in eleven homes and Keon had been placed in eight. A child should not "languish indefinitely" in a resource placement while a parent tries to correct the problems that led to the Division's original involvement. N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super.201, 209 (App. Div.), certif. denied, 192 N.J.293 (2007). Parental dereliction and irresponsibility can be shown by a parent's continued or recurrent drug abuse. In re Guardianship of K.H.O., 161 N.J.337, 352 (1999). In fact, the court is permitted to terminate parental rights even when there is no bond with a caregiver if the biological parents are unfit to care for the child. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super.582, 593 (App. Div. 1996). When a termination action is based on parental unfitness, the proper inquiry is the child's "need for permanency and the parent's inability to care for him or her in the foreseeable future." Ibid.

According to the mother, both children had significant connections to her, and the experts agreed that separation from her would harm them. Although the experts found her to have a loving relationship with the boys, Dr. Dyer nevertheless concluded that the mother's significant problems made her harmful to the children. The Law Guardian's expert found that if the mother could not maintain sobriety it would be best to terminate her rights. Dr. Eric S. Kirschner, a licensed psychologist who evaluated the mother for the Division, found that she lacked the ability to adequately meet her children's needs for safety, nurturance, stability, and guidance and they would be at risk if placed in her care. Thus, the experts largely agreed that even though the mother had a connection to the children, she would be harmful to them so long as she was not sober. We thus affirm the court's finding that the Division satisfied prong four, N.J.S.A. 30:4C-15.1(a)(4), because the mother was highly unlikely to become a sober and stable caretaker, and the boys' only chance for permanency was through adoption.

V

The mother also argues that the Division failed to provide reasonable efforts toward reunification because it failed to provide her with an inpatient drug treatment program. The Law Guardian argues that the inpatient program was necessary because the mother had suffered a setback as a result of her infant daughter's death. The mother never requested such a program.

N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "reasonable" efforts to provide the services that will "enable [a mother or father] to become a functioning parent and caretaker of her [or his] child." K.H.O., supra, 161 N.J. at 354. Those efforts "must by their very nature take into consideration the abilities and mental conditions of the parents." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). A court may not find the efforts unreasonable simply because they "did not bear fruit." Ibid.

The court found the Law Guardian's expert's statement that the mother could be successful in an inpatient treatment program to be "pure speculation" because the mother had not demonstrated the commitment for such a program. The mother had not been successful with any of the seven intensive outpatient programs at Family Connections, Bethel, Airmid and Integrity House. Moreover, she rationalized her use of drugs because of her difficult life circumstances. Dr. Dyer found that her prognosis for positive change was "extremely poor." Even the Law Guardian's expert, who opined that for a residential program to be effective the mother would have to attend for at least twelve to eighteen months, found that the mother did not "accept full responsibility for her past and current behavior" and did not appreciate "how her behavior has contributed to her current circumstances." Even if the mother were to attend such a program, the children would not have permanency for the foreseeable future, after having already experienced four years of instability.

Any other issues raised by the mother are without sufficient basis to consider in a written opinion. R. 2:11-3(e)(1)(E). We note that the mother's claim that the Division should have placed the boys with relatives who moved out-of-state and did not pass the other state's licensing requirement is meritless because such a placement would be contrary to law. See N.J.S.A. 9:23-5, art. III, subd. (d).

VI

The father and the Law Guardian argue that the Division did not provide reasonable efforts toward his reunification with Raheem.

The court found

with regard to [the father] his criminal history, his antisocial behavior, all the other issues, clearly, have indicated that he's a danger to the child. And [he] has not been visiting, has not been involved, has not offered a plan, has not complied with services. [He was not] safe in any way shape or form or appropriate to care for his child.

Specifically, the father argues that the Division improperly restricted his visits with Raheem from November 15, 2011, until September 30, 2013, as a result of the Division's misinterpretation of the FRO.

Although the FRO provided that the Division should facilitate visits between the father and Raheem, Division workers mistakenly believed that the FRO forbade contact between the two. Nevertheless, from the start of the litigation, the father barely requested visits and only sporadically attended court hearings despite being represented by an attorney throughout the litigation. In May 2011 the Division informed him that he was entitled to weekly supervised visitation, but there is no record that he requested visits or that any visits occurred. In fact, during the period from April until November 2011, prior to the entry of the FRO, the father never requested a visit with Raheem.

In November 2011 the father left his drug rehabilitation program and lost contact with the Division. The Division continued to notify the father and his attorney about court hearings. As of April 2013 the father had not participated in the litigation for more than a year and the Division was conducting a search for him.

In August and September 2013 the Division called the father twice and sent him a letter regarding the guardianship proceedings. At a September 2013 hearing he appeared and requested visits. The court ordered the Division to assess whether it was in the best interest of Raheem to rekindle the relationship with his father, given that more than two years had elapsed since their last visit. The father claimed that he had not been aware that Raheem was involved with the Division, but, in fact, the record established that as of April 2011 he knew that Raheem was in the Division's custody.

Subsequently, in November 2013 Raheem's therapist recommended that the father not visit because of the boy's instability and his statement that he had no father. In May 2014 Dr. Dyer found that any child exposed to the father's violent and volatile nature would be in danger.

The father attended an outpatient program from July until October 2011, and he underwent a psychological evaluation on October 17, 2011. However, after that point, he was out of touch with the Division and was not given any further services until September 2013. In addition, just prior to the start of trial, the Division referred him to a substance abuse program at Integrity House.

It is true that the Division did not provide the father with efforts at reunification that were comparable to what was

provided the mother. However,

where one parent has been the custodial parent and takes the primary dominant role in caring for the children, it is reasonable for [the Division] to continue to focus its efforts of family reunification on that custodial parent, so long as [the Division] does not ignore or exclude the non-custodial parent.

[In re Guardianship of D.M.H., 161 N.J.365, 393 (1999).]

The Division's efforts were reasonable under the circumstances. The father had never been Raheem's caretaker, never lived in the same house with him, and played a minimal role in his son's life. By the time he appeared in court in September 2013, more than two years had elapsed during which he had not seen his child.

We cannot know with certainty that these children, who have suffered such harm from the lack of a permanent home, will be able to find one, but we agree with the trial court that their best chance lies with the "select home" adoption program.

Affirmed.

1 We use initials and pseudonyms for the children to protect the identity of the parties. R. 1:38-3(d)(12).

2 The father of the older child was never involved with the child, did not participate in the trial, and does not appeal.

3 This baby tragically drowned in a bathtub at eleven-months-old while in foster care.

4 See N.J. Div. of Youth & Fam. Servs. v. R.M., 347 N.J. Super. 44, 70 (App. Div.) (stating that "[l]aw guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, to express any concerns regarding the child's safety or well-being and in a proper case to suggest the appointment of a guardian ad litem"), certif. denied, 174 N.J. 39 (2002).