NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF I.M.L., a minor.

________________________________________________________________

December 17, 2013

Submitted November 6, 2013 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-3-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Beryl Foster-Andres, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan Brown-Peitz, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.M.L. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant C.P. appeals from the termination of her parental rights to her daughter, I.M.L. We affirm, substantially for the reasons set forth by Judge Audrey Peyton Blackburn in her oral opinion.

I.M.L. is defendant's fourth child, born January 11, 2011. Within two days of her birth, the Division of Youth and Family Services (the Division)1 received a referral from the hospital regarding a confrontation between C.P. and I.M.L.'s biological father, I.L.,2 that required security to be summoned. When hospital staff came to the room in response to the yelling, I.L. explained that C.P. refused to allow him to leave the hospital and hit him. He stated that C.P. frequently hit him at home. The hospital social worker reported that C.P. demanded to have the baby removed from her room, and continued to be verbally hostile to I.L., screaming down the hallway to him that she did not care if "DYFS" took custody of their daughter. According to C.P.'s prenatal records, she admitted occasional alcohol and cocaine consumption and daily marijuana usage during her initial pre-natal appointment in August 2010.

The caseworker reported that, when he interviewed C.P., she "angrily" stated "the Division had no business coming to talk to her as it was part of her agreement when she willingly terminated her parental rights many years ago in regards to her first three children[.]" C.P. stated she had made an identified surrender of the children to her sister, T.W., after she was non-compliant with parenting and drug services required of her. She denied hitting I.L. in the hospital or previously. She admitted making the comment about the Division taking custody of her daughter, explaining "she let her aggravation get the best of her," and stated she had no intention to leave the hospital without her daughter.

When interviewed by the caseworker, I.L. reported that there had been numerous physical assaults, some resulting in C.P.'s arrest. He stated she drank to the point of intoxication during her pregnancy and that he feared she would inadvertently roll over on the baby in her sleep and suffocate her.

Further investigation cast doubt upon C.P.'s denial of prior domestic violence as there were three outstanding warrants for her arrest for domestic violence incidents involving I.L. She also had multiple arrests for drugs and paraphernalia.

In January 2011, C.P. agreed to take part in a Safety Protection Plan that required her to be supervised when she was with I.M.L. by I.L., and, when he was at work, by his adult children. She agreed to cooperate with services required by the Division, including attending meetings at Catholic Charities, participation in a psychological evaluation, and following recommendations from those service providers.

A substance abuse assessment/evaluation completed on January 20, 2011 was negative for all substances. C.P. admitted to a history of mental health issues, including depression, anxiety and controlling violent behavior, but asserted that she did not feel the need for treatment.

The Division sought and was granted care and supervision of I.M.L. on January 25, 2011. The court granted joint legal and physical custody to C.P. and I.L., and ordered them to comply with the provisions of the Safety Protection Plan.

An assessment of C.P.'s cognitive and emotional functioning as it related to her parenting ability was performed by Jamie Gordon-Karp, Psy.D., in February 2011. Dr. Gordon-Karp reported that C.P. presented as angry, particularly during the testing portion of the assessment, and denied any history of domestic violence, any need for help in raising her daughter or that it was necessary for her parenting to be supervised.

Dr. Gordon-Karp found C.P. to function in the low average range of intelligence and stated that the results of the Millon Clinical Multiaxial Inventory-III suggested she was "extremely self-centered" and might "have difficulty putting the needs of others before her own." Dr. Gordon-Karp recommended that C.P. engage in individual and couples therapy; participate in anger management and parenting classes; undergo psychiatric and substance abuse evaluations; and that her contact with I.M.L. continue to be supervised until she demonstrated a commitment to treatment and services.

On April 5, 2011, C.P. stipulated to the jurisdiction of the court under Title 30, admitting she required the Division's assistance. She complied with the court-ordered requirement that she submit to a substance abuse evaluation and had four consecutive negative urine screens thereafter. However, she failed to attend the first scheduled psychiatric evaluation ordered by the court.

Concerns regarding C.P.'s failure to recognize her deficits and inconsistent pattern of compliance came to a crisis point in April 2011. After C.P. disrupted a domestic violence assessment with I.L., he was asked to attend a family team meeting alone to address concerns regarding ongoing domestic violence. At the meeting on April 27, 2011, I.L. requested a Division placement for I.M.L. He stated that, on the prior evening, C.P. had been drinking and was verbally abusive to him. He took I.M.L. to the park to avoid further confrontation. When he returned, he found the door locked and could not gain access because C.P. had refused to allow him a key. He waited outside with I.M.L. for approximately two hours for C.P. to return, until a neighbor offered him water to make I.M.L.'s food. I.L. then walked to the police station, where the police attempted to call C.P. on her cell phone. She did not answer. On the morning of the family meeting, I.L. returned to C.P.'s apartment, where he was to be picked up by the Division's transportation aide. C.P. made no inquiry about the baby or where they had spent the night. I.L. stated he was afraid to return to C.P.'s home and asked if the Division could take I.M.L. and give him time to find a place of his own.

Following an emergency removal pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30, I.M.L. was placed in an unrelated resource home. The Division's permanency goal was reunification with her biological parents, either individually or together.

The Division conducted an investigation and found that neglect by C.P. was substantiated. However, following an administrative appeal, the finding was changed to "not substantiated." Thereafter, the Division sought and was granted care, custody and supervision of I.M.L. by the court. The Division explored relative resources offered by C.P. to no avail. Her sister, T.W., declined; her niece failed to make herself available for assessment; and I.L.'s adult daughter withdrew her name from consideration.

Although C.P. participated in services, she persisted in denying the root causes of her deficiencies as a parent. She maintained that her relationship with I.L. was fine while it remained tumultuous, even disrupting counseling sessions. At a May 2011 psychiatric evaluation by Edward Baruch, M.D., she denied any problems with controlling anger, and admitted only to a history of depression, falsely denying she was taking any medication for her depression at the time of the evaluation. Dr. Baruch prescribed Zyprexa for mood stability and sleep but, despite a court order, C.P. failed to attend additional appointments with him or for lab work to monitor her medication.

The Division arranged for weekly supervised visitation of two hours. The visits between C.P. and I.M.L. were positive but, contrary to restrictions, C.P. arrived at two of I.L.'s visits in August and October 2011 and became extremely disruptive. Despite these incidents, C.P.'s visitation was expanded in January 2012, to allow her to participate in I.L.'s visits.

In April 2012, the court approved the Division's permanency plan of adoption. A guardianship complaint was filed in July 2012.

In September 2012, the Division engaged Dr. Gordon-Karp to re-evaluate C.P. and I.L. regarding their parenting ability and to perform bonding evaluations between them and I.M.L. and between I.M.L. and her foster mother. C.P. continued to deny: any problems in her relationship with I.L., problems managing her emotions, any domestic violence with I.L., and having any problem with alcohol. She contended she had completed all programs required; that she was always kind, never unfair, and always got along with others. All of this was refuted by I.L., who attributed much of her violent and irrational behavior to alcohol abuse.

Dr. Gordon-Karp opined that there were significant concerns regarding C.P.'s ability to parent I.M.L., finding that her inability to deal with frustration, her lack of insight into her difficulties, and her continued abuse of alcohol would continue to place I.M.L. at risk of harm if returned to her care. Dr. Gordon-Karp believed the prognosis that C.P. would change was "very poor" in light of her lack of insight and her inability or unwillingness to develop such insight despite compliance with programs offered by the Division.

Following her bonding evaluations, Dr. Gordon-Karp concluded that I.M.L. viewed her foster mother, with whom she has lived since the age of three months, as her psychological parent. Although she reacted to her biological parents in a positive manner, it was Dr. Gordon-Karp's opinion that I.M.L.'s relationship with them was more like that of a familiar teacher or babysitter. She concluded that I.M.L. would suffer no serious and enduring harm if parental rights were terminated but would suffer a grief reaction if removed from her foster mother.

The expert for the law guardian, Maureen R. Santina, Ph.D., came to similar conclusions following her "best interests evaluation." However, the behavior she observed in the bonding evaluation between C.P. and I.M.L. was less than positive, with C.P. acting impatient and petulant, reflecting an immaturity and a "risk of parentification of the child." She found no evidence of any significant positive bond between the two. Dr. Santina opined that C.P. was not able to safely and effectively parent I.M.L. and was unlikely to be able to do so in the foreseeable future. In contrast, I.M.L. had a strong, positive attachment with her foster mother, who exhibited very good parenting skills. Dr. Santina opined there was a very high likelihood that I.M.L. would suffer profound and enduring distress if separated from her foster mother, whom she viewed as her psychological parent.

The expert testimony provided by Dr. Gordon-Karp and Dr. Santina was not refuted by any expert testimony on C.P.'s behalf. C.P. testified and denied: any physical altercation at the hospital when I.M.L. was born or any domestic violence with I.L. since I.M.L. was removed from her care; that she had locked I.L. and I.M.L. out of the house in April 2011; and current drug use.

After receiving all evidence, Judge Blackburn announced her findings in an oral opinion and entered an order that terminated the parental rights of C.P. and I.L. In her appeal, defendant argues that the Division has failed to prove the four prongs of the statutory criteria necessary for a termination of her parental rights. See N.J.S.A. 30:4C-15.1(a).

As a threshold matter, we note that great deference is afforded 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. M.M., 189 N.J. 261, 278-79 (2007); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). This is particularly true when findings are based on "the trial court's credibility determinations." M.M., supra, 189 N.J. at 279; see also Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Thus, we "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104; see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "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." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).

Termination of parental rights is warranted when the Division establishes by clear and convincing evidence that:

(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 [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) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166-68 (2010).]

The best interests standard represented in these criteria is applied in light of "New Jersey s strong public policy in favor of permanency." In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999). Accordingly, "[i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

The harm that is the focus of the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. C.P argues that the Division failed to satisfy this prong because she never harmed I.M.L. and has not been found to engage in domestic violence or substance abuse since I.M.L. was born. Her contention as to the absence of issues regarding her ability to control her anger is not supported by the record. Nonetheless, to satisfy this prong, the Division does not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship D.M.H., 161 N.J. 365, 383 (1999)). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352.

In finding this prong satisfied, Judge Blackburn stated:

The intoxicated [C.P.'s] refusal to allow [I.L.'s] entry into their home when he had [I.M.L.] in his arms without food or clothing for the infant showed blatant disregard for her daughter's health or welfare. Her continued abuse of alcohol continues to endanger her child. Her continuous refusal to acknowledge her aggressive behavior as the perpetrator of domestic violence, her continued refusal to accept responsibility for her antisocial and aberrant conduct as outlined specifically by the credible testimony of the experts continues to endanger this child.

Under the second statutory prong "[n]o more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (quoting N.J.S.A. 30:4C-15.1(a)(2)). In a contested action, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." J.C., supra, 129 N.J. at 10. Although the proofs will generally "focus on past abuse and neglect and on the likelihood of it continuing[,] . . . the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid.

C.P. argues that the Division failed to satisfy this prong because she "completed each service she was referred to, displayed proper parenting techniques during visitation, and did not engage in any domestic violence." Again, although C.P. did comply with some services, her observed behavior did not reflect an ability or willingness to eliminate the harm caused by her erratic and violent propensities. As Judge Blackburn stated, "the credible experts have meticulously explained how the harmful conduct continues unabated even though services have been provided and completed by the parents."

The third prong of the "best interests" standard contemplates the Division's efforts to reunify the parent and the child by assisting the parent in addressing the problems that led to placement. K.H.O., supra, 161 N.J. at 354. Such efforts include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

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

However, the Division's efforts should be measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 390.

C.P. argues that this prong was not satisfied because the Division's caseworkers refused to offer her unsupervised visitation with I.M.L. in her home. Clearly, however, services were offered that were targeted to help C.P. remediate those issues that created a risk to I.M.L. Supervised visitation was provided and expanded and the denial of unsupervised visitation was consistent with the recommendations of experts retained by the Division and the Law Guardian.

Judge Blackburn found this prong satisfied as well, stating:

Ms. Mitchell's credible narrative outlined at length the services provided to [C.P.] and [I.L.]. [C.P.] also testified about services rendered. The Court has also noted that the first plan for the child [I.M.L.] was reunification with her parents. Alternative caregivers suggested by [C.P.] and [I.L.] were also considered. Termination of parental rights was the last plan considered. This Court finds that the Division has proved Prong 3 by clear and convincing evidence presented in this trial.

Lastly, the fourth prong addresses whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The focus of this prong is whether the child will suffer a greater harm from the termination of ties with the natural parents than from the permanent disruption of the child's relationship with the foster parents. K.H.O., supra, 161 N.J. at 354-55.

C.P. argues that the Division failed to establish this prong because she "was very nurturing and loving to [I.M.L.], shared an attachment with her, and was ready to resume parenting." Her characterization of her relationship with I.M.L. is at odds with the conclusions drawn by the only experts who performed bonding evaluations. Each of the experts identified the foster mother as I.M.L.'s psychological parent.

Judge Blackburn noted:

The testimony of Dr. Gordon-Karp and Dr. Santina both conclude that removal of this child from her foster parent where she has resided most of her life from age six months to three years would remove her sense of security and well-being which could result in acting out, depression and lack of trust which could not be ameliorated by her birth parents. Any loss she might have as a result of their removal could be ameliorated by her foster mother, her psychological parent.

Judge Blackburn also assessed the need for permanence in I.M.L.'s life:

If one thing is clear, it is that the child deeply needs association with a nurturing adult.

. . .

In this instance, [I.M.L.] has the above association with a nurturing adult, her psychological parent. Uncontroverted expert testimony concern concurs that nurturer is neither of her biological parents. Services had been rendered and attended. They did [not] enable either parent to become that nurturing adult. The psychological parent can ameliorate any harm created by termination of these parental rights. They cannot the parents cannot ameliorate any harm created by loss of that psychological parent.

As we have noted, we "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104. Judge Blackburn's decision has such support in the record.

Affirmed.

1 The Division of Youth and Family Services (DYFS) has been renamed as the Division of Child Protection and Permanency as part of the reorganization of the Department of Children and Families pursuant to L. , 2012, c. 16, eff. July 2, 2012.

2

The court also terminated the parental rights of I.M.L.'s father, defendant I.L. He does not appeal from that order.