OF YOUTH AND FAMILY SERVICES v. T.R. and M.L.R IN THE MATTER OF THE GUARDIANSHIP OF M.R Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4941-09T3

A-4988-09T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.R. and M.L.R.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.R.,

Minor.

_________________________________

November 18, 2011

 

Submitted October 25, 2011 - Decided

 

Before Judges Payne, Reisner and Simonelli.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-000021-10.

 

Joseph E. Krakora, Public Defender, attorney for appellants (Durrell Wachtler Ciccia, Designated Counsel for T.R. in A-4941-09T3, on the brief; Judith Bodin, Designated Counsel for M.L.R. in A-4988-09T3, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka R. Felipe, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for Minor M.R. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

In these consolidated appeals, defendants M.L.R. and T.R. appeal from a May 5, 2010 order terminating their parental rights to their daughter M.R. We affirm.

I

We begin with the most pertinent evidence introduced at the first guardianship trial, which began in March 2009. At that time, M.L.R. was in prison serving a sentence that would not end until 2016.1 There was no dispute that T.R. had a long history of drug addiction, which she supported through prostitution. As a result of her persistent drug problems, she was unable to care for her first child, Q.R.2 Her second child, M.R., was born on October 23, 2006. She was medically fragile and had barbiturates in her system. T.R. admitted using heroin during her pregnancy. After an extended stay in the hospital, M.R. was placed in Hudson Cradle, a facility for children with special medical problems, and was then moved to another specialized foster home, and finally to a regular foster home. Despite efforts by the Division of Youth and Family Services (DYFS or Division) to provide T.R. with drug treatment, T.R. was completely uncooperative until April of 2008, when she finally agreed to begin treatment. She completed the program in December 2008.

By the time of the first trial, M.R. was in her fourth out-of-home placement (including her lengthy hospital stay) and, according to the state's expert psychologist, Dr. Jewelowicz-Nelson (Dr. Nelson) the child had already developed reactive attachment disorder. However, Dr. Nelson opined that the child's most recent foster mother interacted very well with the child, had excellent parenting skills, and represented her best hope for overcoming the disorder. At that point, M.R. had only been living with this foster parent for two months.

Based on her evaluation of T.R., including psychological tests and a bonding evaluation, Dr. Nelson opined that T.R. would be unable to safely parent her daughter and would be unable to help her develop a secure attachment. Dr. Nelson testified that, on standardized tests and in her very slow reaction to every question asked, T.R. showed signs of brain injury from a childhood auto accident. She also responded to the tests in ways that demonstrated a lack of understanding of the behaviors a parent could realistically expect from a two- year-old child. The bonding evaluation supported those test results. Further, T.R. was a "loner" who expected the worst from life and was likely to emotionally neglect a child. Taking the child from her foster parent, and placing her with a parent who was unable to meet her needs, was likely to result in continuing psychological harm.

The Division presented testimony concerning its unsuccessful efforts to find relative placements for the child. However, T.R. presented testimony from her father, E.R., that he had stable employment, was willing to care for the child, and was willing to adopt her. Although E.R. worked four days a week, from 3:00 a.m. to 1:30 p.m., and was then caring for his rather difficult teenage granddaughter Q.R., he insisted that he would also be able to care for two-year-old M.R., with assistance from a home aide. At the time of the trial, he had only met M.R. twice. There was also evidence that the Division had ruled out E.R. as a caretaker based on inaccurate information about his having a criminal record.

T.R. presented expert testimony from a psychologist, Dr. Gerard Figurelli, that T.R.'s unrealistic expectations of children's behavior could be improved with parenting classes and, while she did not have a "fully reciprocal" bond yet with the child, "the foundation for such a relationship to develop was there." However, even Dr. Figurelli admitted that T.R. was not able to act as the child's parent. Rather she could "act in a supportive parenting role," which he explained meant "supportive to . . . an adequate primary caretaker." He did not observe the child's interaction with her foster mother, and could not opine as to the impact of removing the child from the foster home. However, he opined in general that it was always better for a child to live with relatives.

In an oral opinion issued May 6, 2009, and a written decision dated May 18, 2009, Judge Sabbath found that DYFS had clearly satisfied the first and second prongs of the best interests test, because T.R. had "severe psychological deficits" and was emotionally unable to parent the child, and M.L.R., who had no relationship with the child, was serving a lengthy prison term in another state. He also found that the agency had properly ruled out all other relative placements, except for the maternal grandfather, E.R. However, the judge concluded that DYFS had not satisfied the third and fourth prongs of the best interests test, because the agency did not give E.R. sufficient consideration as a caretaker and the child had not bonded with the foster parent. Therefore, he dismissed the guardianship complaint and returned the case to the "FN" docket, "with a mandate [to DYFS] to consider the grandfather, and to provide the necessary services and assistance, and to make a more than arbitrary decision" whether to accept him or rule him out.

Less than a month later, however, after a testimonial hearing before Judge de la Carrera, the Division obtained court permission to once again seek termination of defendants' parental rights. In that June 12, 2009 hearing, the Division produced testimony that despite the agency's efforts to assist the grandfather and its offers of visitation, E.R. still had not visited the child and had not completed the process of becoming qualified as a home placement for M.R. The Division also presented testimony that E.R. was providing only minimal supervision for an older grandchild, Q.R., who was living with him. Therefore, DYFS had ruled him out as a placement resource.

A second guardianship trial was held before Judge Sabbath beginning on February 17, 2010. At this trial, DYFS re-presented its evidence concerning M.R.'s birth and placement history; T.R.'s persistent refusal to enter drug treatment until April 2008; M.L.R.'s long-term incarceration; and the Division's efforts to identify relatives who might be willing and able to care for the child. A DYFS case worker explained in detail why the agency had ruled out several relatives.

Focusing on the maternal grandfather, E.R., the DYFS witness explained that initially E.R. was living with his wife, L.R., who had severe mental illness. Then E.R. was living with a woman who had a DYFS history. When his paramour finally moved out, not long before the first trial, E.R. still needed to become a licensed foster parent. Moreover, in light of his work schedule, E.R. needed to provide DYFS with a plan for how he was going to care for M.R. if she lived with him. DYFS sent E.R. an application for "4C's", which would have provided him with daycare. Despite letters and phone calls from DYFS in late May 2009, he did not complete the 4C's application or provide any other childcare plan.

In September 2009, the older child, Q.R., accused E.R. of physically assaulting her. Although those charges were eventually found to be unsubstantiated, E.R. withdrew his application to care for M.R. in September 2009. He did not re-apply for licensure after that. Moreover, although DYFS offered him opportunities to visit with the child on days and at times that would fit his work schedule, E.R. did not come to any of the visits. According to the DYFS worker, E.R. had visited the child once since May 2009. The agency was particularly concerned about E.R.'s care plan for M.R. because, until September 2009, Q.R. was living with him and he left her unsupervised most of the time.

Dr. Nelson once again testified, describing her updated psychological evaluation of T.R. and updated bonding evaluations. She also evaluated E.R. and conducted a bonding evaluation between M.R. and E.R., and between Q.R., T.R., and E.R. She found that T.R. was at risk for a relapse of depression, and did not understand how to care for a young child. She opined that T.R. was not a fit parent and, based on an updated bonding evaluation, M.R. did not have "a bond of psychological attachment" with T.R.

Dr. Nelson opined that, based on the most recent bonding evaluation of the foster mother and M.R. in December 2009, the child had "clearly" developed a healthier and stronger bond with the foster mother. She opined that for a child placed at about eighteen months of age, "it takes about an average of 18 months to solidify that attachment." She testified that M.R. was "doing what she's supposed to be doing in terms of developing the trust, and the confidence, and the security in this attachment, which is really the first time in her life that she has developed an emotional attachment to a single care giver." Dr. Nelson also opined that if M.R. were taken from the foster mother and placed with T.R., the child was likely "to lose whatever gains she has made" and likely to develop "a permanent reactive attachment disorder of childhood that will have lifelong implications." It was likely to cause "permanent, irreparable, and very severe damage to her personality structure and emotional makeup."

Based on her bonding evaluation of E.R. and M.R., Dr. Nelson concluded that he really did not know how to deal with a young child. E.R. also told her that he planned to have the child cared for by "relatives." She concluded that he "was not a fit parent . . . to meet [M.R.'s] emotional and psychological needs, and . . . it was not in her best interest to be placed with him." She also opined that having the child cared for by several relatives assisting E.R. would create a problem for this child, given her history of reactive attachment disorder. E.R.'s expressed plan to let T.R. care for the child, and his admitted existing problems handling Q.R, only multiplied the danger to M.R. in giving E.R. custody of her.

By the time of the second trial, T.R. had been drug-free for almost two years, had a part-time janitorial job since October 2009, and had been living in a two-bedroom apartment since May of 2009. She had also regularly visited with M.R. T.R. testified that if given custody of her daughter, she would place her in daycare while she worked. On cross-examination, she admitted that she refused to go to a drug rehabilitation program from the time M.R. was born until April 2008, despite knowing that the child was in foster care all that time.

In his testimony, taken by telephone, M.L.R. admitted that he could not personally care for the child due to his incarceration until 2016 for a robbery conviction. He admitted that he had not seen M.R. since the day she was born. He also confirmed that none of his out-of-state relatives had re-applied for consideration as caretakers since the Division initially ruled them out. However, he believed that T.R. could care for M.R. if given a chance to do so.

E.R. testified that he had been trying to obtain custody of his granddaughter M.R. since she was placed in foster care. He asserted that he withdrew his foster care application in September 2009 because a DYFS worker, Robert Felton, told him to do so or he would permanently lose custody of Q.R. He later conceded that Felton told him he could re-apply after three months.3 He admitted that he had never re-applied. In response to the court's question, E.R. claimed that neither his daughter, nor her attorney, nor anyone else, ever told him that the court had issued a decision in May 2009 that gave him another opportunity to have M.R. placed with him.

E.R. testified that Q.R. no longer lived with him, although she visited him regularly. He worked the 7:00 a.m. to 3:00 p.m. shift, and if he had custody of M.R. he would "drop her off at her mother's [T.R.'s] house" during his work hours. If that plan was not acceptable to DYFS, he would send M.R. to daycare. However, he testified that he had not "looked into any daycare" because he "didn't [know] how this case was going to go." He claimed he never received the 4C's application. On cross-examination, he admitted that he had made no effort to visit M.R. since the March 2009 trial, and had only seen the child three times in her life.

Dr. Figurelli, who had conducted a second psychological evaluation of T.R. and a second bonding evaluation, admitted in his testimony that "the bondedness or attachment in the relationship between [T.R.] and the child was still limited in nature and scope." He also conceded that T.R. displayed "a limited range of techniques" in her parenting ability. He testified that, at that time, T.R. was not capable of independently parenting the child, and would need "in-home support services." He saw no evidence that M.R. had reactive attachment disorder. He admitted that during the bonding evaluation with T.R., M.R. was calling out for her foster mother, and he admitted that if removed from the foster mother's care and placed with T.R., "it will be a difficult adjustment for [M.R.]" and "a significant emotional loss." He also agreed that M.R. and the foster mother were "developing a significantly emotionally attached relationship." In fact, his report stated that "the caretaker appears to be [M.R.'s] primary parental attachment figure at this time," and separation from her would cause M.R. "severe and enduring" harm.

The Law Guardian presented its investigator, Felicia Capers, who testified that she spoke to E.R. in May 2009 about his willingness to care for M.R. At that time, E.R. told Capers that "he would like to have [M.R.] into his home, but he couldn't at the time because [Q.R.] was giving him so many behavior problems."

In a comprehensive oral opinion issued on May 5, 2010, Judge Sabbath first re-affirmed and incorporated his earlier findings that DYFS satisfied the first two prongs of the best interest test with respect to both parents. He found that M.L.R. was "unavailable to the child" by virtue of his incarceration, and that the agency had met the third and fourth prongs against him as well. He found that the agency was unable to provide services to M.L.R. due to his incarceration, and had made a reasonable if unsuccessful effort to identify his relatives who might care for the child. He also considered M.L.R.'s complete lack of a relationship with the child, the child's secure bond with the foster mother, and the harm that would result from severing that bond.

Judge Sabbath found Dr. Nelson's testimony more credible than that of Dr. Figurelli. He credited Dr. Nelson's testimony that T.R. was not capable of parenting the child.4 The judge found that T.R. had made great progress in her own drug rehabilitation, and was in full remission. However, he found that T.R. was not capable of solely or safely caring for the child. He noted that both experts agreed that M.R. had finally formed a "significant attachment" to her foster mother and that the child would suffer serious and enduring harm if removed from her foster mother. He did not believe Dr. Figurelli's testimony that M.R. could overcome that harm with the assistance of psychotherapy.

The judge credited Dr. Nelson's testimony that the child had reactive attachment disorder, from which she was recovering, and that removing her from the foster parent would inflict serious and enduring "emotional or . . . psychological harm." He found that T.R. did not have the capacity to remediate that harm. He also found that the agency made extensive efforts to provide T.R. with services. Nevertheless, her psychological problems "are permanent" and rendered her unable to parent M.R.

With respect to E.R., the judge found that "circumstances have substantially changed" since the first trial. He found that E.R

has now been properly ruled out for a number of reasons. Including his lack of efforts in satisfying licensing requirements, insufficient contacts with the child, and an apparent inability to do what he has to do in order to qualify as a resource person in the case. . . . [E.R.] wants to do the right thing, but it's far beyond his capacity, and he bit off more than he could chew, and he couldn't do any more.

 

The judge found that DYFS made substantial efforts to assist E.R. to qualify as a resource placement, but had not succeeded. He also credited Dr. Nelson's opinion that "the child would be subject to serious and enduring harm if the child was removed from the foster parent and placed in his custody. . . . [E.R.] does not have a sufficient attachment with the child and [is] incapable of providing a nurturing relationship for the child."

The judge also explained that he originally believed that E.R. had been more successful in parenting Q.R. than he, in fact, had been, and had thought Q.R. might even have been able to help care for the child. However, the judge acknowledged that was a misperception, due to new evidence of the extensive difficulties E.R. had in caring for Q.R., and the teenager's documented history of "serious problems." He also found that E.R. had made no effort to visit M.R. despite the Division's offers of visitation.

The judge concluded that the child's best interests would be served by termination of both parents' rights, "leaving her in the custody of the foster mother" who wished to adopt her and who could provide M.R. with the stable, permanent home she needed.

II

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We owe special deference to a trial judge's credibility determinations, and to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super.81, 89 (App. Div. 2006), (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

 
(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 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.

 

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010).

By statute, when a child is removed from a parent's custody, the Division must attempt to find relatives with whom the child can be placed. N.J.S.A. 30:4C-12.1. Moreover, we have "previously acknowledged with approval 'the Division's policy to place children with relatives whenever possible.'" N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003)). "There is no presumption in favor of placement with relatives." Id. at 580. However, "N.J.S.A. 30:4C-12.1 . . . does not permit the Division to embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." Id. at 580.

On this appeal, M.L.R. presents his arguments in the following points:

POINT I: DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15.1.

 

A. DYFS Failed To Prove By Clear And convincing Evidence That M.L.R. And T.R. Were Unwilling Or Unable To Eliminate The Harm Facing Their Daughter M.R. Or Were Unable To Provide A Safe And Stable Home For Their Daughter.

 

B. DYFS Failed To Prove By Clear And Convincing Evidence That It Considered Alternatives To Termination Of M.L.R.'s And T.R.'s Parental Rights.

 

C. DYFS Failed To Prove By Clear and Convincing Evidence That Termination Of M.L.R.'s And T.R.'s Parental Rights Will Not Do More Harm Than Good.

 

T.R. presents these points for our consideration:

POINT I: THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WILL BE SERVED BY TERMINATING T.R.'S PARENTAL RIGHTS TO HER DAUGHTER.

 

A. The State Failed To Prove, By clear And Convincing Evidence, That T.R. Is Unwilling Or Unable To Eliminate The Harm Facing Her Child.

 

B. The State Failed To Prove, By Clear And Convincing Evidence, That 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 To Consider Alternatives To Termination Of Parental Rights.

 

C. Termination Of Parental Rights Will Do More Harm Than Good.

Having reviewed the record, we find no merit in any of defendants' arguments. In essence, both parents argue that T.R. is now a fit parent; that DYFS gave her an inadequate opportunity to develop a bond with the child and exaggerated the extent of the bond between the child and the foster parent; and

that the grandfather E.R. is a capable relative placement but the agency made no meaningful efforts to assist him. The record does not support any of those contentions. The parents' briefs understate T.R.'s weaknesses as a potential parent and the child's significant needs. They also overlook the grandfather's failure to visit the child or to cooperate with the Division's efforts to assist him.

The evidence overwhelmingly supports all of Judge Sabbath's factual findings and legal conclusions in this case. T.R. took a very long time to come to terms with her drug addiction, and even after she did so, she remained psychologically challenged and unable to act as this child's parent. Perhaps through no fault of his own, E.R.'s life was beset with difficulties that precluded his acting as the child's parent. And when he was offered the opportunity to qualify as a resource parent, he failed to follow up. He has seen M.R. three times in her life. He cannot possibly mitigate the disastrous consequences of separating this child from her foster mother. Even T.R.'s expert reluctantly conceded that the child has a strong parent-child bond with her foster parent and would suffer severe and enduring harm if that bond were severed.

For all of these reasons, and those cogently expressed in

 

Judge Sabbath's May 5, 2010 opinion, we affirm.

Affirmed.

 

1 M.L.R. participated in the guardianship trials by telephone from prison. His attorney was present in the courtroom.

2 Q.R. is not M.L.R.'s biological child. She has lived for most of her life with her maternal grandfather, E.R.

3 Felton later testified that he had explained to E.R. that it could be beneficial to withdraw his application and re-submit it a few months later, rather than have DYFS deny the application due to then-existing concerns about Q.R.'s allegations of abuse, E.R.'s allegedly abusive relationship with his then-girlfriend, and E.R.'s persistent failure to provide DYFS with necessary information. If DYFS denied the application, E.R. would not have been able to re-apply for a year. According to Felton, E.R. voluntarily withdrew his application after Felton explained these options to him.

4 The judge found no significance to Dr. Nelson's view that T.R., with the assistance of E.R., could parent Q.R., noting that Q.R. was a much older child and "basically there is no other place for [Q.R.] to go."