NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0231-11T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

P.H.,

Defendant-Appellant,

and

E.C.,

Defendant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF B.L.H., a minor.

__________________________________

March 26, 2013

 

Submitted February 5, 2013 - Decided

 

Before Judges Lihotz, Ostrer and Kennedy.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-90-09.

 

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

JeffreyS. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Deirdre A. Carver, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.L.H. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant P.H. (Penny)2 appeals from a July 2011 order terminating her parental rights to her daughter B.L.H. (Bonnie), then almost nine years old. Bonnie's father, E.C. (Elliot), surrendered his parental rights and does not participate in this appeal.

Penny argues the Division did not present sufficient evidence to satisfy the four prongs of the best-interests standard set forth at N.J.S.A. 30:4C-15.1a. She also argues the court erred by admitting into evidence an expert report without the expert's appearance, denying Penny the right of cross-examination. We affirm.

I.

We provide a brief overview of the facts, which we will analyze in greater detail in our legal discussion. Bonnie was born prematurely in November 2002 with multiple medical problems and disabilities. She remained hospitalized for the first few years of her life, residing at a primary care, and then the long term care unit of Children's Specialized Hospital of the Robert Wood Johnson Health System, after her discharge from the neonatal intensive care unit at St. Christopher's Hospital for Children in Philadelphia.

She was discharged to a specialized home placement in September 2007, and, except for brief attempted placements with relatives, remained in foster placement thereafter. She was diagnosed with cerebral palsy, and chronic lung disease, secondary to prematurity. She had been ventilated as an infant, had a tracheostomy3 until age two, suffered multiple episodes of pneumonia, and only ceased respiratory medications shortly before her discharge.

Bonnie has an IQ of forty-two. She suffered from dysphagia4 and was unable to consume food normally, and as of trial, she still received most of her nutrition through a feeding tube. She suffered from a global development delay and had only begun, at the time of trial, to communicate verbally in more than one word expressions. She was not fully toilet-trained. Despite the significant limitation she suffered as an infant, she had grown into a mobile, hyperactive toddler who lacked appreciation of danger and required careful supervision to avoid harming herself.

Penny was forty-three when she gave birth to Bonnie and she is disabled. It is undisputed she is legally blind and confined to a wheelchair. She suffers from diabetes, chronic renal failure, requiring dialysis three days a week, and gastroparesis,5 requiring repeated hospitalization for roughly half of each month. Further, she lacks the intellectual ability to care for Bonnie and is unable to develop this ability.

Penny asserts that her daughter J.H. (Judy), who was twenty-two years old at trial, could serve as Bonnie's kinship legal guardian (KLG) or her adoptive parent. Judy has three children of her own. She has no full-time earned income, though she worked part-time at a movie theater. She has resided with her mother in her subsidized housing. Although Judy contributed to the rent, she also relied upon her mother's Social Security Disability income for support. The Division maintained that Judy was ill-equipped to provide the level of care and supervision that Bonnie would need.

When she testified in June 2011, Judy conceded she had not visited her half-sister in a year-and-a-half to two years. Penny testified she had not seen her daughter in two-and-a-half years. Bonnie had formed an attachment to her specially trained foster parent, who did not intend to adopt Bonnie. However, the Division asserted that only upon termination of parental rights, would it be able to secure an adoptive home for Bonnie.

A five-day trial was conducted between December 9, 2010, and July 25, 2011, when Judge Terence P. Flynn issued an oral opinion and entered the order terminating parental rights and awarded guardianship to the Division to effectuate Bonnie's adoption. This appeal followed.

II.

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on the judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) ("We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." (citation and quotation omitted)); E.P., supra, 196 N.J. at 104.

A parent's right to raise his or her child is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm under the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To obtain a judgment of guardianship and terminate a natural parent's rights, the Division must prove by clear and convincing evidence these four prerequisites:

(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.

 

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

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986). These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Having reviewed the record, we are satisfied that Judge Flynn's findings are well-supported by credible evidence, and he correctly applied the governing law. While we agree that it was error to admit an expert report, we find the error to be harmless, given the weight of evidence supporting the court's decision.

A.

We address the first and second prongs together. Regarding the first prong, the court concluded that Penny, "in her condition[,] has no ability to care for this child whatsoever," especially given Bonnie's special needs. Moreover, the child's "health, safety and development would be endangered by the parental relationship." Regarding the second factor, the court found that defendant was "unable to eliminate the harm that would be facing the child if she were placed in her care, and she is unable to provide a safe and stable home." The court detailed Penny's illnesses and disabilities and noted she was incapable of addressing her daughter's own disabilities. The court further found that "to delay . . . [the termination] decision will delay" placement because several "steps . . . need to be taken to make . . . [Bonnie] available for adoption."

Penny argues the court erred as to prong one because "[t]here is no evidence that [Penny] harmed her child." However, that is not the test. "The absence of physical abuse or neglect is not conclusive[.]" A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977)); see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) ("Neither A.G. nor R.L. has harmed the child, nor is there any evidence to show that they would intentionally harm the child. But that is not the test."), certif. denied, 171 N.J. 44 (2002). Nor is the State required to establish the parent is morally to blame. A.G., supra, 344 N.J. Super. at 439 (terminating parental rights of mentally ill parent); R.G & F., supra, 155 N.J. Super. at 194-95 (same).

Rather, the first prong addresses whether the child has been, or will continue to be endangered by the parental relationship. N.J.S.A. 30:4C-15a(1); see A.G., supra, 344 N.J. Super. at 440. A parent's inability to nurture or care for his or her child meets that standard. "This mother's inability to provide any nurturing or care for her daughter for the prolonged period is a harm to [the child] that is cognizable under the best interests standard." K.H.O., supra, 161 N.J. at 356 (terminating parental rights of parent with intractable drug problem).

Under the first prong, there was ample and undisputed evidence that Penny endangered, and would continue to endanger, Bonnie's safety. Penny's own disabilities and medical needs she is visually impaired, wheelchair bound, and resides in a hospital half of every month prevented her from caring for Bonnie, and satisfying her daughter's special needs.

With respect to prong two, Penny concedes her "medical conditions will not likely improve to any point which would allow her to individually care for [Bonnie]." See N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005) ("[T]he fundamental focus of the inquiry is . . . whether the parent can become fit in time to meet the needs of the child."). However, Penny argues the court erred in finding that delaying placement would add to the harm. She argues the Division had not identified a permanent placement for Bonnie and its plan to seek an adoptive home was uncertain. She notes also that Bonnie's current foster parents did not intend to adopt her, so the harm caused by separating her from those parents was not an appropriate factor in the court's calculus.

We are unpersuaded. We recognize 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). However, the Court recognized in A.W. that "there will be circumstances when the termination of parental rights must precede the permanency plan. A multiply-handicapped child or a young adolescent might not be adoptable at the time of the termination proceedings." Supra, 103 N.J. at 611.

Judge Flynn credited the Division's adoption case manager Charles Crudup, who testified about the efforts the Division would make to find an adoptive home for Bonnie in New Jersey or elsewhere. He testified that delay would reduce the prospects for success. He indicated that improvements in Bonnie's capabilities increased her prospects for adoption, notwithstanding her history. Despite her disabilities, Bonnie attended a local, regular elementary school, where she participated in a special education program. She had begun speaking in sentences and was making progress in potty-training. On the other hand, she still relied on a gastrointestinal tube for nutrition. She still received occupational, speech and physical therapy in the home through visiting nurses.

While Crudup did not hazard a prediction, he expressed optimism about Bonnie's adoption prospects once the Division was freed by termination to fully engage in efforts to find an adoptive home. Indeed, several months after Crudup's testimony, the Division identified two sisters (unrelated to defendant's family) who were interested in having Bonnie placed in their home and ultimately adopting her. They had visited with Bonnie in the Spring of 2011. At trial in June 2011, Division counsel represented to the court that the sisters remained interested in the placement and eventual adoption.

In sum, we are satisfied there was sufficient evidential support for the court's prong two finding.

B.

With respect to the third factor, the court found the Division had made reasonable efforts "to provide services that allow for the child to remain in the home with the mother present and with . . . [Judy] present," including trainings addressing how to provide care for Bonnie. The court found the Division also had considered several relatives other than Judy to care for Bonnie, but none were capable or willing. The court determined that a KLG was not appropriate because the proposed caregivers, including Judy, "have no way of being able to care for this child."

In support of his prong three finding, the judge also referred to the opinion of Dr. Chester Sigafoos, who did not testify at trial and whose report was admitted into evidence over Penny's objection. The court noted that Dr. Sigafoos had evaluated Penny in February 2009 and concluded that Penny was "suffering from depressive disorder with some obsessive-compulsive issues and personality traits and paranoid personality features." The court stated that Dr. Sigafoos's evaluation was at least of relevance here because if we were to grant Judy Kinship Legal Guardianship or custody of this child we recognize that the mother would be present and in the home. And based on what we will talk about later it is clear that the mother in some way or another will set the tone in that household.

With respect to Judy's ability to be a kinship legal guardian to Bonnie, the court noted that Judy had been unable to properly care for Bonnie in late 2006 and early 2007. She observed that Judy was an eighteen-year-old single mother, burdened with the responsibilities of caring for her own child and Penny. When Judy was responsible for caring for Bonnie during a five-day visit to Penny's home, the Division found Judy "totally overcome by the amount of pressure" involved in caring for her mother, her own child, and Bonnie. At a medical examination, it was noted that Judy had not changed Bonnie's clothes. Judy had also arrived late for Bonnie's speech therapy appointments.

Judy presented herself at trial as a more mature, capable, and committed caregiver than she was a few years earlier. However, the court concluded that she was still unprepared to care for Bonnie:

[Judy] at [twenty-two] . . . lives apparently with her mother and her younger brother in Neptune . . . . Since she was last involved, putting herself up as an [eighteen]-year-old caregiver she has had two more children. She tested positive for marijuana at the birth of her third child.

 

So now she has three children, ages [four], [three], and [eight] months, each with a different father. She says that her current boyfriend supports her to the tune of $150 per week, but there's no confirmation of that, and that certainly isn't enough, especially with regard to all of the needs of these children. She's never had a full-time job, she says it is her intention to enroll in a licensed practical nurse program and we do not know whether or not that has ever happened.6

She does support herself not only with the help of her boyfriend but she takes advantage of her mother's payments for Social Security Disability, which help her pay for the rent. She gets food stamps for her children. She is in . . . Section 8 housing, but under her mother's name and she will need to leave, or would need to leave that housing for her own.

 

She says that as far as her mother, she manages her mother's feeding, makes sure that she eats, makes sure that she takes her medication. And of course with the mother's needs that is a full-time job except for the times when the mother is hospitalized.

 

She said tellingly that she has not visited [Bonnie] for a year-and-a-half. If she loved this child, cared for this child as her sister, she would have done so. She said that location and transportation were a problem. The first didn't seem to be a problem. Of course when [Bonnie] was in Atlantic Highlands there were offers from the Division to transport them for the visits that were not take[n] up. And then [Bonnie] was moved, or her second placement is in Asbury Park, which is right next to Neptune where [Judy] lives now. So transportation or location, this Court finds was not a sufficient excuse.

 

They never on their own spoke to the Division to arrange for transportation or a babysitter for the children while those visits take place. And of course she never attended her psychological evaluation the first time.

 

She now wants to adopt this child . . . . She said she'd only work when [Bonnie] was in school. How she could manage that, I don't know. She would rely on babysitters to care for her own children, but she would care for [Bonnie] herself.

She would ensure that the mother provided no care for the child. She had also plans of moving as the house she was in was too small, and otherwise she said she could rely on friends. But [what] the Attorney General made clear with regard to those friends is that we don't know whether these friends any more than the last set of people would be willing to be trained. And that as I said, training is one thing, total commitment to this child which is necessary is another thing.

 

Defendant challenges the court's prong three finding, asserting the Division did not make sufficient efforts to assist Penny in visiting Bonnie, and the Division wrongfully excluded Judy as a caregiver because she would live in the same home as Penny, notwithstanding that Penny had never caused Bonnie any harm. Defendant also argues the court erroneously admitted into evidence Dr. Sigafoos's report; the Division should have been required to call the expert to testify, and subject him to cross-examination.

We first address Penny's evidentiary challenge. Defense counsel initially objected to admission of Dr. Sigafoos's report on two grounds: it was hearsay that did not qualify as a business record; and it was not relevant, particularly because it was "several years old[.]" The court asked counsel if he wished to call Dr. Sigafoos, presumably to cross-examine him, and counsel stated he did not because "[Penny] has indicated that she physically can't take care of [Bonnie]. So, the psychological evaluation is not relevant to this particular aspect of the case."

"We grant substantial deference to the trial judge's discretion on evidentiary rulings." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (citations omitted). Rule 5:12-4(d) also permits the Division to submit in evidence "reports by staff personnel or professional consultants," but it must do so "pursuant to N.J.R.E. 803(c)(6) and 801(d)," which embody the business record exception. The business records exception expressly states that admissibility is "subject to Rule 808." N.J.R.E. 803(c)(6). N.J.R.E. 808 sets limits on the admissibility of expert opinions in business records, and requires a court to make a finding of trustworthiness if the expert has not been produced as a witness.

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

 

[Ibid.]

 

We recognize that the court did not expressly consider "the circumstances involved in rendering the opinion" nor did it find those circumstances established the opinion's trustworthiness. See M.G., supra, 427 N.J. Super. at 172-75 (holding trial court in Title 30 guardianship matter erred in admitting reports of non-testifying psychologists, which were not sufficiently trustworthy because the experts were hired to support the Division's case, and the reports involved subjective judgments on complex matters, rather than non-controversial and straight-forward diagnoses).

However, the court essentially offered to require Dr. Sigafoos to be produced as a witness, to subject him to cross-examination. Defense counsel declined. Instead, defense counsel relied on the objection that Dr. Sigafoos's opinion was not relevant.

Moreover, even if the admission of the report were error, it was harmless error. The court considered Dr. Sigafoos's report in determining that Penny would not be a positive influence if Bonnie were placed with Judy in Penny's home. However, the court's decision to reject placement with Judy rested primarily on Judy's past failure to properly care for Bonnie, and her current incapacity to do so, not on Penny's potential presence in the home.

Next, we turn to Penny's argument that the Division failed to provide her with transportation to visit Bonnie. We recognize that Crudup admitted, under questioning by the court, that the Division did not itself have vehicles with the capability to transport a wheelchair-dependent parent, and was unwilling to hire a transportation service that did. The judge noted that many parents who raise children are confined to wheelchairs and may need transportation assistance. On the other hand, the evidence also demonstrated that Judy had transported Penny to visits until her car fell into disrepair and she could not afford to fix it.7 Based on the record we cannot conclude Penny's failure to engage in visitations resulted from the Division's unwillingness to provide handicapped transportation. The Division's case notes include several instances where Penny declined to request transportation assistance. Also, consistent regular visitation with Bonnie was precluded by Penny's ongoing hospitalizations.

Also, we determine the provision of transportation services was unrelated to any "services to help the parent correct the circumstances which led to the child's placement outside the home[.]" N.J.S.A. 30:4C-15.1a(3). Simply put, whether Penny were transported to visits or not would have had no impact on overcoming her incapacity to care for her daughter, given her own chronic illness and intractable disabilities.

Understanding the emphasis under prong three is on steps the Division takes to achieve reunification, F.M., supra, 211 N.J. at 452, the court must assess the adequacy of the Division's efforts "in light of all the circumstances of a given case." In re Guardianship of DMH, 161 N.J. 365, 393 (1999). The Division is only required to provide reasonable services, and not necessarily those that succeed. Ibid. Having reviewed the facts in light of these legal principles, we conclude the Division has satisfied its duty to provide services.

We also reject Penny's argument that the Division did not adequately consider placement with Judy. As the court recounted, the Division engaged in an effort to assess Judy's ability to care for her half-sister in 2007, but concluded, with justification, that Judy was ill-equipped. We recognize that Judy presented herself at trial as a more mature and committed caregiver. We do not question her good faith. Yet, there was sufficient evidence in the record, highlighted by the court, as to why Judy was unlikely, despite her best intentions, to fulfill Bonnie's special needs, while attending to her own three children, her mother Penny, and attempting to further her own education.

C.

Finally, regarding prong four, the court found termination of parental rights would not do more harm than good. "Terminating the mother's parental rights will establish for all involved and particularly with regard to the future decisions of the Division that they can go forward and aggressively try to find and adopt alternative placement for this child."

Penny contends the Division did not prove by clear and convincing evidence that termination of parental rights would not cause more harm than good. She asserts "it appears that the prospect of the Division finding a permanent placement is unlikely," because placements were unsuccessful and Bonnie's present foster parents did not wish to adopt. She contends that termination offered no potential benefit, while depriving Bonnie of the support of her mother. Instead, Penny advocated "long-term specialized care" for Bonnie, while the Division sought a permanent placement or reassessed relative placement, including with Judy.

The fourth statutory element of the best-interests standard requires the Division to show that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1a(4). Satisfaction of the fourth prong does not require that no harm be found. See K.H.O., supra, 161 N.J. at 355 (stating that "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties"). "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child[ren] will suffer a greater harm from the termination of ties with [their] natural parents than from the permanent disruption of [their] relationship with [their] foster parents." Ibid. "[T]he child's need for permanency and stability emerges as a central factor." Id. at 357. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453.

In essence, Penny suggests that termination will render Bonnie a legal orphan, severed from her natural parents, while destined not to find a permanent adoptive home. However, this case is far different from that presented in E.P., supra, 196 N.J. at 109, where a child had an "enduring emotional bond" with her mother, and little prospect of placement, having cycled through twelve foster homes. Here, there was sufficient evidence in the record to enable Judge Flynn to find that the prospect of placement, which would be enhanced by termination, outweighed the harm from termination.

Bonnie did not maintain an "enduring emotional bond" with Penny or Judy. In their rare visits, Bonnie demonstrated little recognition or attachment to them. Whether or not the placement with the sisters proceeded, their interest demonstrated that Bonnie's prospects were not wholly theoretical.

Nor would it have been in Bonnie's best interest to continue placement in long-term specialized care. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438. The child's need for permanency and stability is critical. K.H.O., supra, 161 N.J. at 357. In this case, an expert testified that permanent placement would also enhance Bonnie's ability to achieve developmental advances. The instability, and discontinuities in care threatened to undermine her capacity to function.

In sum, there was sufficient credible evidence in the record to support the court's prong four finding. The Division satisfied all four prongs of the best-interests standard by clear and convincing evidence.

Affirmed.

1 Pursuant to L. 2012, c. 16, effective June 29, 2012, the Division of Youth and Family Services is now known as the Division of Child Protection and Permanency. We will refer to the agency as the "Division."

2 For the reader's convenience, and intending no disrespect, we refer to the parties and others by pseudonyms.

3 A tracheostomy is "[a]n operation to make an opening into the trachea." Stedman's Medical Dictionary 2007 (28th ed. 2006).

4 Dysphagia is difficulty in swallowing. Id. at 599.

5 Gastroparesis "results in delayed emptying of the bowels." Stedman's Medical Dictionary, supra, at 793.

6 Judy testified that she worked twenty to thirty-five hours a week at a movie theater, and she intended to begin school in September 2011, attending 8:00 a.m. to 4:00 p.m. five days a week.

7 Moreover, Penny did not establish that she could not avail herself of public transportation services, particularly those specifically designed for the disabled, such as Access Link and Para Transit. See Sell v. N.J. Transit Corp., 298 N.J. Super. 640, 642 (App. Div. 1997) (describing Access Link as a curb-to-curb bus service for qualifying disabled persons provided by New Jersey Transit to comply with the Americans with Disabilities Act and U.S. Department of Transportation regulations); see also 49 C.F.R. 37.123 (ADA paratransit eligibility standards).