DIVISION OF CHILD PROTECTION AND PERMANENCY v. G.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4844-14T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

G.M. AND L.J.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.C.M., a minor.

____________________________________

May 24, 2016

Submitted April 11, 2016 Decided

Before Judges Sabatino and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-262-14.

Joseph E. Krakora, Public Defender, attorney for appellant G.M. (Edward F. McGinty, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant L.J. (Eric R. Foley, Designated Counsel, on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher Psihoules, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.C.M. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

We consolidate these appeals to address the issues raised by the parties. Defendants L.J. (mother) and G.M. (father) are the biological parents of T.M. (fictitiously Tommy). They are appealing from final judgments of guardianship terminating their parental rights to Tommy. We affirm based on our review of the record in light of the applicable law, substantially for the reasons set forth in the comprehensive written opinion of Judge David B. Katz.

I.

Tommy was four years old in 2012 when what was characterized as his "hysterical" crying for two hours triggered this family's referral to the Division of Child Protection and Permanency (Division). The Division's home visit revealed the apartment was without electricity because the electric bill had not been paid in four months. Tommy appeared undernourished, suffered from untreated eczema over a large part of his body and was not enrolled in school because his immunizations were not up to date. He had not been to a doctor for a year. There was little food in the apartment. Father was intoxicated, uncooperative and unfocused. Mother either was intoxicated or suffering from a developmental disability. According to the Division's caseworker, father "became agitated [with the Division's visit] to the point where the child had to be removed from their care."

Although abuse and neglect charges against mother and father were not substantiated after a fact-finding hearing, the Division continued its jurisdiction under Title 30 because of concerns about their ability to safely care for Tommy. The Division offered a number of services to mother and father to assist them.

Mother suffers from cognitive limitations. She was able to complete parenting classes, but she was not consistent in attending an alcohol abuse program, resulting in her discharge. She attended only a portion of her individual counseling sessions arranged by the Division and only one "family" team meeting that would have helped her devise a plan for the child going forward. She acknowledged father physically abused her, including breaking her jaw at one point, and she did obtain a restraining order against him, but then continued to live with him on weekends for a time. Mother had a new fiancé by the time of the guardianship trial, but she would not provide his contact information to the Division, which precluded it from reviewing him for potential placement.

Father did not complete parenting skills training nor would he attend an anger management course. He never successfully completed any drug treatment programs, not even one that he entered on his own. His visitations with Tommy were supervised because his behavior at the visitations often was aggressive and agitated, which at times caused Tommy to cry. Father's supervised visitation was suspended when he was alleged to have been convicted in New York for offensive touching.1 He was examined by a doctor who recommended against resumption of visitation until he showed some therapeutic progress. A psychiatric evaluation recommended psychiatric treatment, but father refused it, although he did complete a program of individual psychological therapy.

The Division's expert, psychologist Dr. Eric Kirschner, performed a psychological examination of father for the Division. Although initially refusing to participate, when he did cooperate, father presented with a "manic type of presentation to his mood" and was "argumentative . . . from the very start." He falsely denied any history of domestic violence, drug or alcohol use or an arrest record. Dr. Kirschner concluded father exhibited "a serious mental illness . . . in the form of a mood disorder." "He was not under the care of any type of psychiatric services or . . . mental health services." He suffered from "paranoid ideation [and] delusional thought process." He showed low empathy. Dr. Kirschner concluded father's judgment was impaired and he had no appreciation for the extent of his mental illness, which would affect his ability to care for a child. Dr. Kirschner testified that father was not fit to parent Tommy now or in the future.

Dr. Kirschner's psychological examination of mother revealed she was a victim of domestic violence at the hands of father, had not completed alcohol abuse treatment and lacked a general understanding of child growth and development. She told him that she drank five cups of vodka a day for five years. His testing of mother revealed she lacked empathy and nurturing skills. She suffered from cognitive limitations that affected her ability to reason. She could not think abstractly, her judgment and insight were limited and she had "limited psychological resources for coping and managing" her own needs. He concluded she was not fit to parent, based on "cognitive limitations" and "alcohol issues."

Dr. Kirschner did not conduct a bonding evaluation of father and Tommy because father's supervised visitations with Tommy had been suspended for two years by the time of the trial, but he did evaluate the relationship between mother and Tommy. Dr. Kirschner concluded there was a bond between Tommy and mother, although she interacted indirectly with Tommy and did not engage him. Tommy called her "mommy," but then Tommy also referred to his foster mother as "mommy." Tommy expressed that he loved mother and, if he could not live with his former foster mother who had moved to Florida and had an iPad and Netflix, then he would want to live with his "real" mommy.

Dr. Kirschner's opinion was that Tommy needed a consistent, stable and loving environment. Tommy's own parents, mother and father, were not fit to provide this and would not be able to do so in the future. He testified that if the bond between Tommy and his mother were severed that Tommy would likely experience "some measure of harm" but this would not be "severe and enduring" because of Tommy's ability to form a bond with another person, such as a foster parent, and then "mitigate the impact of the harm." Any harm from disrupting the bond would be ameliorated with services.

Tommy had been in foster placement since 2012. One of Tommy's early foster mothers had moved to Florida only a few months after Tommy came into her care. At the time of trial, she was being explored as an option for permanent placement. Tommy's then-current foster placement also was considering adoption, but wanted adoption by relatives to be explored first. Relatives in South Carolina were being reviewed for potential adoption at the time of the trial, but that process had not been completed.2

Following a multi-day trial, Judge Katz determined that the Division had proven all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and ordered the termination of mother's and father's parental rights to Tommy. With respect to father, the court found father failed to provide a "safe and stable home for [Tommy] due to his lack of employment and stable housing." His drug use was "untreated." The judge found that father's "documented behavior and undisputed mental impairments, combined with his refusal to undertake or complete any Division services" established that father "has endangered and will continue to endanger [Tommy's] health and development."

It was not "reasonably foreseeable," according to the trial court, that father would "eliminate the harm in the near future, because he steadfastly denie[d] having any mental issues or being responsible for [Tommy's] removal." It then was not reasonably foreseeable that father "[could] cease to inflict harm upon" Tommy. The court found the "delay in permanent placement caused by [father's] non-compliance will add to the harm to [Tommy, who] is clearly in need of a stable and permanent environment." Although numerous services were offered to father and even though Tommy remained in placement for nearly two years by the time of the trial, father still would not comply with or complete these services.

Tommy was in need of a "consistent, stable and nurturing environment." Father did not provide this because he "displayed extremely disruptive, inappropriate and combative behavior during many visits, which upset [Tommy] and made him cry on several occasions." Father was defiant and resistant to treatment. Without a bonding evaluation, the court found that termination of father's parental rights would not do more harm than good. "The good that results from [Tommy] having an opportunity to be in a loving, caring and stable home with a caregiver who is fit to parent far outweighs any harm from a termination of [father's] parental rights."

With respect to mother, the trial court determined she lacked stable housing and a "viable plan" to parent Tommy. She suffered from "cognitive limitations." She was "unable to mitigate the instability presented by [father]" and she also did not have the "psychological capacity to provide for and nurture her child." The trial court found that mother was "unable to cure her parental deficiencies or limitations . . . and is unlikely to be able to do so in the foreseeable future, and that delay in permanency is further harming [Tommy]." As such, Judge Katz found that Tommy's "safety, health or development has been and will continue to be endangered by the parental relationship with [mother]." Reasonable services were offered to mother "to help her parent by providing services to correct the circumstances leading to [Tommy's] removal," but these were not successful.

Although recognizing that a court "should hesitate to terminate parental rights in the absence of a permanent plan that will satisfy the child's needs[,]" N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996), the trial court concluded, consistent with the recommendation of Dr. Kirschner, that termination was in Tommy's best interest. Mother did not have the psychological capacity to parent Tommy in the future while termination of parental rights would enable Tommy to have an opportunity for permanency. Any harm to Tommy in terminating his parental relationships could be mitigated by appropriate services.

Mother appeals the trial court's determination claiming error because of Tommy's bond with her and because it incorrectly relied on the assumption that permanency would be achieved for Tommy when in fact there was no family yet approved to adopt him. Without an identified foster parent and bonding evaluation, the Division in effect was relieved of its burden of proof. Tommy would be harmed if the bond with his mother were severed without a permanent replacement for that relationship. Mother suggested the trial court erred in not ordering kinship legal guardianship.3

Father raises similar issues on appeal. Because there was no foster parent willing to adopt at the time of trial, the Division's expert could only speculate about the type of relationship that might mitigate the acknowledged harm to Tommy from terminating his parents' rights. Father contends he should have been able to provide expert testimony and is critical of the proofs because of the absence of a bonding evaluation between father and his son. Father alleges deficient performance by his counsel caused prejudice to his case.

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 (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. 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 court 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) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), 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).

We find no error in Judge Katz's decision, expressed in his comprehensive fifty-seven page written opinion, that all four prongs of the statutory test were met with evidence that was clear and convincing. We address only briefly the first three prongs of the statute because there was little discussion of these by appellants in their briefs.

With respect to the first prong, 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). The record amply supports the judge's conclusion that mother's cognitive limitations, her lack of a viable parenting plan, and her lack of understanding about normal child growth and development, posed a real threat to Tommy's health, safety and development.

Similarly, father's mental health and substance abuse issues remained untreated and caused inappropriate and aggressive behavior that affected the child. He continued to lack basics such as stable housing and employment and despite the provision of many services that he did not successfully complete, he did not address the harms he posed for his son.

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 of Dr. Kirschner, that mother was "unable to cure her parental deficiencies or limitations" and that father's mental health issues, which he "steadfastly denies" and did not treat, prevented them from eliminating harm to Tommy in the foreseeable future.

Under the third prong, the record fully supported the trial court's determination that a host of services had been offered to mother and father but despite this, they still lacked the ability to parent Tommy.

We find no error in the trial court's analysis of the statutory fourth prong, even though at the time of trial there was no person or family who had been approved to adopt Tommy. 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. In undertaking this balance, the court reasonably relied on Dr. Kirschner's opinion that Tommy needed stability and that neither mother nor father would be able to provide this to Tommy now or in the future, concluding that Tommy's need for a permanent relationship outweighed the harm from terminating his parents' rights.

This statutory fourth prong 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 with the foster parent. K.H.O., supra, 161 N.J. at 355. Although no permanent adoptive family had been approved for Tommy at the time of trial and a court generally should "hesitate to terminate" parental rights when there is no permanent plan for the child, B.G.S., supra, 291 N.J. Super. at 593, there also are "circumstances when the termination of parental rights must precede the permanency plan." A.W., supra, 103 N.J. at 611. There was no reason here to utilize the fourth prong as a "fail-safe" against termination. See G.L., supra, 191 N.J. at 609.

For example, in N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 110-11 (2008), the Supreme Court reversed a judgment terminating parental rights of a mother who had an "intense bond" with her daughter but who also had relapsed repeatedly after inpatient and outpatient rehabilitation programs. In E.P., the child was thirteen and had been in twelve different placements with no prospects for adoption. Id. at 111. In that case, given the "bleak prospect of adoption" and an "enduring emotional bond" with her mother, the Court concluded termination of the mother's rights as a parent would do more harm than good. Id. at 109-10.

This appeal is not like E.P. Tommy is capable of forming new attachments and is emotionally healthy. His prospects for adoption are not bleak. At least three adoptive options were being explored at the time of trial. Father did not present witnesses testifying about his relationship with Tommy, or any attempt by father to maintain the relationship in the more than two years since his supervised visitation was suspended.

In R.G., supra, 217 N.J. at 536, the Supreme Court also reversed a judgment terminating parental rights because several witnesses at trial testified, as did the child, about her relationship with her father, maintained through letters and phone calls, despite his absence for a time from her life due to incarceration. The crimes for which the father was incarcerated did not bear on his parental fitness and, although he was not then willing or equipped to take full custody of his child, that "should not be equated to relinquishment of parental rights to maintain a parental connection to one's child." Id. at 560-61.

In contrast to R.G., the evidence was unrebutted in this appeal that mother and father could not and would not be able in the future to meet the child's needs because of their own cognitive or mental health limitations nor did father even attempt to maintain the contact of the nature shown in R.G..

The trial court acknowledged there is a bond between Tommy and mother. She was cognitively limited, however, such that she did not have the psychological capacity to adequately parent Tommy. The court reasonably concluded that her limitations would not be cured in the future and Tommy needed the opportunity for a permanent relationship.

Father had had no relationship with Tommy for the two years preceding trial because he suffers from a "very serious case of . . . untreated mental illness . . . with [a] psychotic component." Father "lacked the capacity to meet a child's needs in an appropriate way."

There was no error in the trial court's judgment on this record that the harm from terminating the bond with his mother and any future relationship with his father would be less than the good that could come to Tommy from a permanent situation away from parents who simply will not be able to provide Tommy with the protection and nurturing that he needs. This is so even without a permanent option at this time.

III.

Father raises for the first time on appeal that he was denied effective assistance of counsel during the guardianship trial. The errors alleged are that his trial attorney did not ask the court to reinstate father's supervised visitation, did not object when defendant was not permitted to produce his own expert, did not seek his own psychological evaluation of father and failed to make objections at trial.

To prevail on this ineffectiveness claim, father must be able to show his counsel's performance was objectively deficient and that a reasonable probability existed that, but for counsel's errors, the result of the trial would be different. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007); see also Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 74, 693 (1984). These standards are not satisfied in this appeal.

In pre-trial conferences, father's counsel advised the court that father did not intend to retain an expert and eventually he was barred from doing so. Although critical of that position now in retrospect, there is no indication that father had retained or could retain an expert that would dispute Dr. Kirschner's testimony about father's mental illness.

As for the visitation issue, the supervised visitation records that father now says support his claim that his former attorney should have requested to resume visitation show instead the same aggressive and inappropriate behavior by father that informed the basis of Dr. Kirschner's opinions. There was no likelihood that visitation would have been granted, in any event, given the court's pre-trial comments that father first would need an expert to say visitation could be safely accomplished. Father has not shown any specific trial errors by counsel that would constitute deficient performance under these standards. This record simply does not show that the performance of father's counsel was deficient or resulted in actual prejudice to his position.

Affirmed.

1 The Division did not supply the trial court or this court with a copy of the judgment of conviction. Father denies that he was convicted of such an offense. Even if he was not in fact convicted of the New York offense, there is abundant evidence in the record to support the trial court's findings concerning the elements required for termination.

2 After the trial, the Division advised Tommy was "placed into his pre-adoptive relative home in South Carolina on February 20, 2016[.]"

3 Kinship legal guardianship is not an available option where adoption remains feasible, as it does with Tommy. See N.J.S.A. 3B:12A-6(d)(3)(b).