NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.S.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1996-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.S.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.X.M., a minor.

___________________________________

December 13, 2013

Argued November 18, 2013 Decided

Before Judges Yannotti, Ashrafi and

St. John.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden

County, Docket No. FG-04-175-12.

Gregory K. Byrd, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Byrd, on the brief).

Michelle D. Perry-Thompson, Deputy Attorney

General, argued the cause for respondent

(John J. Hoffman, Acting Attorney General,

attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Ms. Perry-Thompson, on the brief).

Caitlin McLaughlin, Designated Counsel, argued the cause for minor child (Joseph E. Krakora, Law Guardian, attorney; Ms. McLaughlin, on the brief).

PER CURIAM

Defendant-mother E.S.M. appeals from the judgment of the Chancery Division, Family Part, terminating her parental rights to a son, now eleven years old. We affirm.

The child's biological father has not been identified. The child has substantial emotional problems and special needs and has never been in defendant's custody. The Division of Child Protection and Permanency (the Division)1 is seeking to find a home and an appropriate parent to adopt the child.

Defendant has three other children, none of whom are in her custody. She opposes termination of her parental rights on the ground that the Division did not prove the required statutory elements of N.J.S.A. 30:4C-15.1(a). The law guardian appointed to represent the interests of the child joins the Division in opposing the appeal. We find no merit in defendant's arguments and affirm the judgment for the reasons stated in the oral decision of Judge Linda Baxter, issued in open court on December 18, 2012, following the guardianship trial.

Judge Baxter carefully considered the evidence as it applies to the four prongs of N.J.S.A. 30:4C-15.1(a) and concluded by the clear and convincing standard of proof that it is in the best interest of the child to terminate defendant's parental rights so that the child can become available for adoption and permanency in his life. Substantial credible evidence supports the judge's findings of fact and conclusions of law. We add the following discussion to set forth the legal standards that apply and to summarize the evidence that supports the trial court's decision.

A reviewing court must defer to the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer to the trial court s assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Deference is accorded because the trial court had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605). Here, the Family Part's conclusions were not wide of the mark but well-supported by the evidentiary record.

To summarize the facts, we begin by noting that defendant had a troubled childhood. As a teenager, she was the victim of sexual abuse, allegedly by her mother's boyfriend. In 2000, when she was fourteen years old, the Division received a referral that she had engaged in sex with her nine-year-old brother.

The child who is the subject of this appeal is defendant's second child. He was born in May 2002, when defendant was only sixteen years old. The day after the child's birth, the Division asked defendant to sign custody of the child over to her mother, and she did. Defendant's mother also had custody of defendant's older child, a girl.

In April 2003, defendant was substantiated for emotional abuse of both her children. The Division's complaint alleged an incident that involved defendant "tossing [her children] across the room, and telling the children to go away."

Defendant's mother was subsequently granted kinship legal guardianship of the two children pursuant to N.J.S.A. 3B:12A-6(d). The court's guardianship order concluded that defendant would not be an appropriate parent for the children at any time in the foreseeable future because of "extensive and ongoing drug problems" that she had not addressed appropriately.

As a juvenile, defendant was charged seventeen times with juvenile offenses, including adjudications of delinquency for fighting, assault, and harassment. In 2004, she was placed in a group home in South Carolina because, in her words, "my anger was so bad that I blew all the programs in New Jersey." She returned to New Jersey in February 2006, but her mother did not permit her to reside in her home with the two children. Defendant lived at a shelter for teens and young adults. She visited with her children several times a month.

In June 2007, defendant gave birth to her third child. The Division took responsibility for care and supervision of the newborn. At about the same time, defendant pleaded guilty, now as an adult, to fourth-degree aggravated assault with a deadly weapon. She was sentenced to three years of probation. In late 2009, defendant surrendered her parental rights to her third child.

In the meantime, defendant gave birth to her fourth child in January 2009. About a week later, the Division sought and obtained custody of that child and placed him with a paternal relative, where he remains.

In April 2009, defendant's mother told the Division that she could no longer take care of defendant's two older children because she would be taking a job as a truck driver. The arrangement for kinship legal guardianship was vacated, and the two children were moved to foster care, first together, then separately after the older child exhibited "aggressive behaviors" in her foster home. Through arrangements made by the Division, defendant began supervised visits of one hour weekly and telephone contact with her two older children.

In September 2009, defendant was arrested yet again. The charge involved an assault perpetrated with an accomplice that seriously injured the victim. In October 2010, defendant pleaded guilty to one count of aggravated assault and one count of theft by unlawful taking, and she was sentenced to three years in prison. While imprisoned, defendant did not have visitation with her children. After serving the bulk of that sentence, defendant was paroled in April 2012.

In May 2012, the Family Part accepted the Division's permanency plan for the boy who is the subject of this appeal, a plan for termination of defendant's parental rights followed by select home adoption. The Division filed its guardianship complaint in June 2012. Trial was conducted before Judge Baxter in December 2012. The Division presented two witnesses, Dr. Jamie Gordon-Karp, Psy.D., and Division caseworker Akeia Wright. Defendant testified on her own behalf. Judge Baxter concluded in her oral decision that the Division had proven by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a).

With respect to the first prong, the Division "must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 25 (2013) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). The harm caused by the parental relationship need not be physical harm. "[G]uardianship cases . . . often address long-term problems that affect a child's welfare." Ibid. The "focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348, 352. Types of harm that the court can consider include drug addiction that prevents effective care of the child, E.P., supra, 196 N.J. at 104-05, inability to provide a safe or stable home for the child because of incarceration or otherwise, N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 223 (App. Div. 2013), and failure to understand or provide for a child's needs because of the parent's own emotional or psychological struggles, N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 481-82 (App. Div. 2012).

In this case, Judge Baxter found that defendant had harmed the child in three ways: defendant's absence from the child's life and instability in conducting her own life, her failure to understand and thus provide for the child's special needs, and her emotionally negative behavior during visits with the child. Each type of harm has substantial evidential support in the record.

Defendant was unavailable to the child for half his life. As a teenager, defendant was placed in an out-of-state group home to address her own behavioral problems. As an adult, she committed crimes and was sentenced to prison. In addition, during the years that defendant was available, she was unable to participate in the child's upbringing in a meaningful way. She did not have a stable home and was not consistent in visiting with the child. When she did visit, she engaged in emotionally harmful behavior to the child.

Defendant also did not have the ability to understand the child's special care needs. The child was diagnosed with ADHD, and evaluation reports emphasized his need for "treatment including therapy, support and medication monitoring." Instead of acknowledging the child's needs, defendant dismissed their causes and at times abrogated her responsibility as the child's mother to address his oppositional behaviors. During supervised visitation, defendant displayed a lack of ability to parent effectively on her own, and a lack of interest in learning how. Judge Baxter found that defendant suffers from a "profound lack of insight into the very serious nature of her son's emotional disturbance." Dr. Gordon-Karp opined that, because he is emotionally disturbed, the child requires a much higher level of care than defendant would ever be able to provide, even after lengthy intensive therapy for her.

Defendant argues that the "psychological and emotional harm that was done to [the child] cannot be attributed" to her alone. It is true that the child also suffered from the termination of his kinship legal guardianship arrangement, and from the unsuccessful foster placements that followed, but the other sources of harm do not change the fact that defendant was a primary cause of psychological harm to the child. Responding to a similar argument, the Supreme Court wrote: "Nor do we believe it appropriate to consider as a factor mitigating or excusing the showing of injury to the children that . . . their placement had not been successful, or that . . . there had been difficulties with the new foster parent. These are the inevitable consequences of temporary living arrangements." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 614 (1986).

In sum, clear and convincing evidence supports the trial judge's conclusion that the Division proved the first prong of the termination statute.

The second prong can be satisfied by a showing "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49; accord H.R., supra, 431 N.J. Super. at 224. In this case, defendant demonstrated no ability to maintain stable housing. At the guardianship trial, she adamantly refused to disclose where she was then living. She was also inconsistent in visiting with the child; she missed a number of scheduled visitations while the child waited for her to arrive, and she often arrived late on other occasions. As Dr. Gordon-Karp opined, these cycles of hope and disappointment to the child in his relationship with defendant caused him additional harm. Defendant demonstrated no capacity to cure that harm.

Defendant testified that she completed both anger management and parenting classes in prison. She contended that she "participat[ed] in services above and beyond those offered by the Division" and thus showed that she was willing and able to eliminate whatever harm her current parenting deficiencies would cause the child. While hopeful, defendant's participation in prison services stands in stark contrast to her inability to attend or engage actively in counseling or visitation services outside the structured setting of prison. Judge Baxter found that defendant "lacks the discipline to make a sustained effort that . . . therapy would require." There was ample evidence that defendant does not have the ability and inclination to make significant changes in her life and to eliminate the harm she has done to her son.

To satisfy the third prong of the statute, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and the trial court must also have "considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This subsection "contemplates efforts that focus on reunification of the parent with the child." K.H.O., supra, 161 N.J. at 354. Proof of this prong does not typically depend on the success of the services, since "[e]xperience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012).

Defendant argues that the Division provided her with "standard services including evaluations and supervised visitations" but failed to provide services targeted to address her history as a victim of sexual abuse. The Division's efforts were unquestionably frustrated by defendant's absence from the child's life for significant periods. After the out-of-state residential placement and treatment, defendant returned to New Jersey with her anger problems unresolved. She was twice convicted as an adult of assaults and was ultimately sentenced to a prison term of years. It is hardly surprising that the Division did not consider reunification with the child appropriate while defendant was charged and sentenced for violent criminal offenses.

Besides anger management, domestic violence counseling, and parenting classes, defendant also received treatment directed toward fostering a bond with her children. Defendant only exhibited spotty compliance with the services and treatment programs. Defendant failed to improve despite the Division's efforts to provide services.

The judge also found that the Division had considered alternatives to termination of defendant's parental rights but none was available. Defendant's mother had attempted kinship legal guardianship for several years but ultimately could not care for the child. No other relatives or friends were available to take custody. Moreover, the child's emotional difficulties required parental care and supervision beyond the ability of many potential caregivers. The record reflects the sad reality that it is difficult to find a stable resource home for an older child with special needs. The Division's efforts to find alternatives to termination of parent rights were unsuccessful not because the Division did not try but because there were no practical alternatives. Judge Baxter correctly concluded that the Division met its burden of proof on the third prong of the statute.

The final prong requiring that termination will do no more harm than good is a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453 (quoting G.L., supra, 191 N.J. at 609). This inquiry, which depends on the strength and value of the various bonds the child has created with the parent and other caregivers, "necessarily requires expert inquiry." K.H.O., supra, 161 N.J. at 355. The fourth prong is concerned primarily with "the child's need for a permanent and stable home, along with a defined parent-child relationship." H.R., supra, 431 N.J. Super. at 226 (internal quotation marks omitted). Thus, courts should be especially attuned to whether refusing termination would "expose the [child] to the dangers and instability" of the parental bond, or "disrupt any permanency" that the child may have established elsewhere. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 287 (2007).

Defendant argues that severing her bond with the child would do more harm than good because there is no family ready to adopt him, and his current foster family has not expressed an interest in adoption. Defendant contends there "would be no harm" in leaving the parental relationship in place and giving her more time to correct her faults.

Dr. Gordon-Karp testified, however, that the bond between the child and defendant is insecure, and that a continuing parental relationship would harm the child by continuing his exposure to his mother's inconsistency. The doctor acknowledged that the child would suffer some harm if his relationship with defendant is severed, but she also noted that the child had "manage[d]" during the times that defendant was absent from his life because of her incarceration. Because of the child's age and special needs, permanency "is extremely important," and continuing the relationship with his biological mother would simply "prolong the inevitable" by continuing to expose him to the "ups and downs" of his mother's unstable lifestyle, with the result being "no change" in his circumstances after another year or more of waiting. Judge Baxter did not err in concluding that the Division had proven the fourth prong of the statute.

Substantial credible evidence supports the Family Part's conclusion that the Division proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. There was no error in entering judgment terminating defendant's parental rights.

Affirmed.

1 L. 2012, c. 16, eff. June 29, 2012, reorganized the Department of Children and Families and renamed the Division of Youth and Family Services (DYFS) as the Division of Child Protection and Permanency.