NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.A.I.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

L.A.I.,

Defendant-Appellant,

and

J.E.,

Defendant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.D.K.I. and K-E.F.I., Minors.

_________________________________

November 15, 2016

Submitted October 11, 2016 Decided

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-26-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa Bayly, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant L.I. is the biological mother of Karen and Kerry1 and appeals the final judgment of guardianship terminating her parental rights to these children.2 We affirm substantially for the reasons set forth in the comprehensive oral opinion of Judge Audrey Peyton Blackburn.

I.

When twin girls Karen and Kerry were born prematurely on July 31, 2013, they both tested positive for marijuana. L.I. admitted to smoking marijuana regularly. She was referred by the Division of Child Protection and Permanency (DCPP) to drug treatment services and the twins were discharged to her care. By October 2013, DCPP executed an immediate Dodd removal of the children.3 By that time, L.I.'s marijuana use had increased. She unilaterally changed the special formula prescribed for the twins. The children were not current on their immunizations, but L.I. would not provide DCPP with the children's social security numbers so that health coverage could be obtained. One child had severe diaper rash, and both were found soiled. They were suspected to be suffering from a failure to thrive4 and had umbilical hernias.

Following the children's removal and placement with a resource parent, L.I. was offered a number of services and evaluations. Within the next twelve months, L.I. completed some of the services but not others.5 L.I. successfully completed a substance abuse program. L.I. completed individual parenting education classes, but not with the original service provider. Her participation with the original provider had been terminated because she threatened the staff and then refused to undergo a safety assessment to resume the services. After completion of drug counseling and parenting classes, L.I. expressed that she had gotten nothing out of them. She remained a proponent of corporal punishment which she had used with another of her children.6 DCPP scheduled supervised visitation with the twins, and L.I. attended a number of the sessions, but the bonding evaluations conducted in February 2015 showed no attachment to her by the twins, nor did DCPP ever recommend that she have unsupervised visitation.

L.I. did not follow up on her need to attend domestic violence counseling. She did not respond to the request for additional urine screenings in January 2015 to ensure that she was remaining drug-free. L.I. would not attend individual counseling for mental health concerns because she felt that drug treatment counseling was all that was necessary for her. Later when L.I. did arrange for individual counseling for mental health issues just weeks before the guardianship trial, she would not sign a release so that DCPP could obtain her records. She walked out of a psychological examination when she no longer wished to participate.

On September 21, 2015, following trial, Judge Blackburn terminated L.I.'s parental rights to Karen and Kerry in a comprehensive oral decision.

On appeal, L.I. raises the following issues

POINT I SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE FOUR PRONGS OF THE BEST INTERESTS TEST WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) [DEFENDANT] IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE PRESENTED DID NOT SUPPORT A FINDING THAT THE TWINS' SAFETY, HEALTH OR DEVELOPMENT WAS OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) THE COURT'S FINDING THAT [DEFENDANT] WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING HER CHILDREN AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIROMENT WERE ERRONEOUS.

(C) DCPP FAILED TO SATISFY THE THIRD PRONG OF THE BEST INTEREST TEST BECAUSE IT PROVIDE[D] SERVICES THAT WERE NOT APPROPRIATE UNDER THE CIRCUMSTANCES AND THAT VIOLATED THE PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT (42 U.S.C. 12101 ET SEQ.) AND DID NOT CONSIDER ALTERNATIVES TO TERMINATION.

(D) [DEFENDANT] IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE THAT WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

POINT II THE TRIAL COURT ERRED BY RULING THAT D-2 WAS HEARSAY AND LIMITED ADMISSIBILITY BECAUSE NO EXPERT TESTIMONY WAS PRESENTED.

We agree with the trial judge there was sufficient credible evidence in the record to prove by clear and convincing evidence that all four prongs under N.J.S.A. 30:4C-15.1(a) were met.

II.

We start by recognizing the established principle 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, 346-47 (1999). These rights are not absolute but are "tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347. The standard by which the rights of the parents and the interests of the State in the welfare of the child are balanced is "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

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

(2) [t]he 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) [t]he [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) [t]ermination of parental rights will not do more harm than good.

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

These factors relate to each other and overlap; they are not "discrete and separate." K.H.O., supra, 161 N.J. at 348. Each prong must be proven by the Division with clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).

"Our review of a trial judge's decision to terminate 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)); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Factual findings that are supported by adequate, substantial and credible evidence "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (alteration in original) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)); see also In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

Additionally, 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). Our review is expanded, however, where the error alleged is "in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).

A.

In considering the first prong of the statutory test, the concern is "whether the parent has harmed the child or may harm the child in the foreseeable future." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 113 (App. Div.) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)), certif. denied, 180 N.J. 456 (2004).

Judge Blackburn's decision focused on the children's condition at the time of their removal, citing to L.I.'s increased marijuana use, the children's lack of immunizations because of L.I.'s refusal to provide social security numbers, one child's severe diaper rash, L.I.'s unilateral change in the required baby formula, the children's possible failure to thrive, umbilical hernias and L.I.'s refusal to attend mental health services to help her remediate the issues that caused the children's removal. The psychological reports indicated that L.I. had limited ability to empathize with the children's needs and feelings. She had an inadequate knowledge of child development. She would not engage in individual psychotherapy. When she was again evaluated by the psychologist, Dr. Kavanaugh, L.I. showed higher psychopathology than the year before. Her prognosis for improvement was poor. She needed at least a year of psychotherapy to begin dealing with her mental health issues. All of these circumstances posed harm or potential harm to the children's safety and health providing ample support for the judge's decision that prong one was satisfied by clear and convincing evidence.

B.

Under the second prong, the trial court was required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon the [child]." A.W., supra, 103 N.J. at 607. We find no error in the trial court's determination based on the unrebutted testimony and reports of psychologist Dr. Lee, and the reports of Dr. Kavanaugh, that L.I. was unable or unwilling to eliminate the harms that caused the children to be removed.

Judge Blackburn relied on Dr. Lee's bonding evaluation which opined that the twins "each developed a significant and positive psychological bond with their resource parent." Dr. Lee concluded the children likely would suffer greater harm if their relationship with the resource parent were terminated than if the children resided with L.I., who would not be able to address the harm the children would suffer if their bond with the resource parent were terminated. The judge found L.I. "reject[ed] counselling which would help her remediate the harm [to the children]." Based on Dr. Kavanaugh's reports, the court found there was ample testimony to support that L.I. was not able to parent the children "at this time, or at any time, in the foreseeable future." Based on these reports, the court found that "[i]n fact, her mental health condition is deteriorating."

For the first time on appeal, L.I. contends she did not attend counseling because no one explained to her the difference between mental health counseling for her diagnosed post-traumatic stress disorder and the counseling for drug treatment.

"Generally, an appellate court will not consider issues . . . which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012) (citations omitted). However, here the record is replete with opportunities for L.I. to engage in mental health services. She was told by the doctors that she needed these services and she declined to attend. L.I. offered no proof that she misunderstood the type of services she was to attend nor that her cognitive development precluded her from understanding the distinction. The fact that she accepted some services offered by the DCPP and completed them, but did not participate in others, tended to show that she was choosing the services she would attend and was capable of understanding them. Judge Blackburn had ample basis to conclude the second prong was satisfied.

C.

With respect to Prong Three, which requires DCPP to show it has made reasonable efforts to provide services, Judge Blackburn's opinion recounted that L.I. was provided services including substance abuse treatment, supervised visitation, parenting classes, psychological and psychiatric evaluations, and that she was referred to mental health counseling. However, the trial judge found L.I. refused to attend some of the services. Her attendance was sporadic for others. She completed one service and declared that she learned nothing or that the information provided was wrong. She also was confrontational with staff; she refused counseling. The DCPP considered placing the children with relatives, but none qualified or were accepted by L.I.

On appeal, L.I. contends the services provided to her were not tailored to her cognitive disabilities, which she contends qualified her for reasonable accommodations under the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 to -12213. In 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), we noted that "the ADA does not provide a defense to a termination of parental rights proceeding" because to do so would "improperly elevate the rights of the parent above those of the child." Although DCPP's efforts should "take into consideration the abilities and mental conditions of the parent," the success of those efforts is not the measure of whether the services were reasonable. Ibid.

Here, the doctor's reports differed considerably as to L.I.'s level of cognitive functioning. One doctor found an overall low IQ, another noted L.I. graduated from high school and a third found an average IQ. L.I. never identified what accommodation she was requesting, and she never identified what services should have been tailored to her level of cognitive functioning, but were not. This new contention was not supported by the experts who examined or evaluated L.I. and who did not raise that L.I.'s cognitive level interfered with her ability to understand the content of the services offered or their necessity. That L.I. may now be benefitting from the individual counseling she finally has undertaken proves nothing about DCPP's efforts to deliver services, nor does it reveal any inadequacy on DCPP's part in tailoring services to meet her needs.

Alternatives to termination of parental rights must also be considered under the third prong analysis. N.J.S.A. 30:4C-15.1(a)(3). Placements with relatives obviate the need for termination. DCPP must undertake a reasonably prompt and fair investigation of such potential placements. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 87 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). Here, DCPP made reasonable efforts to try to place the children with relatives but were not successful. We are satisfied the trial court took into consideration all the services offered and the efforts made in trying to place the children with relatives in finding the third prong of the statutory test was met.

D.

We find no error in the trial court's decision that the fourth prong of the statute was satisfied. This prong requires the trial court to balance the harms suffered from terminating parental rights against the good that will result from terminating these rights. K.H.O., supra, 161 N.J. at 363; A.W., supra, 103 N.J. at 610-11. It does not require a showing that "no harm" will result from the termination of parental rights, but involves a comparison of the child's relationship with the biological parent and the foster parent. K.H.O., supra, 161 N.J. at 355.

The trial court relied on the testimony of Dr. Lee in finding that termination of parental rights would not do more harm than good. His bonding evaluations and testimony concluded that the children were bonded to the resource parent and the children would be harmed if that bond were terminated. In contrast, there was an ambivalent and insecure attachment with L.I. She was not in a position to address their needs. Dr. Kavanaugh's psychological reports concluded L.I. required intensive psychotherapy for at least a year to begin to be considered as a caretaker for the children.

On appeal, L.I. contends the court erred in finding the fourth prong was proven because Dr. Lee conducted a bonding evaluation and not a psychological evaluation. However, Dr. Lee addressed the statutory requirement that "termination will not do more harm than good." Moreover, there was ample evidence in the record through Dr. Kavanaugh's reports that L.I. would not be able to parent without several years of therapy and showing progress in her recommended treatments. Therefore, we find no error by the trial judge in concluding that the fourth prong was satisfied by clear and convincing evidence.

III.

The final point raised by L.I. is that the trial court erred in failing to admit a document into evidence. We review evidentiary decisions under an abuse of discretion standard. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

Document D-2 is a letter from a licensed social worker at Catholic Charities who did not testify at trial; it was not a business record of DCPP. See Rule 5:12-4(d) (permitting DCPP "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants."). The letter reported that L.I. was attending individual counseling. We discern no abuse of discretion by the court in excluding this document from evidence because of its hearsay and non-business record nature.

Affirmed.

1 We have used fictitious names for the parties throughout the opinion to maintain their confidentiality.

2

The twins' father, J.E., voluntarily surrendered his parental rights to the children in August 2015.

3

The Dodd Act is found at N.J.S.A. 9:6-8.21 to -8.82 (as amended).

4 The twins were later found to be on target with their development.

5

She also stipulated under Title 9 that she harmed her children due to unremedied substance abuse.

6

L.I. has two other children, one of whom is an adult, and the other resides with his father.