NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.S.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2858-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

K.S.C. and S.J.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.J.,

Minor-Respondent.

____________________________________________________

October 31, 2013

 

Submitted October 16, 2013 Decided

 

Before Judges Fisher, Espinosa and Koblitz.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-67-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant K.S.C. (Jennifer M. Kurtz, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant S.J. (Rhonda J. Panken, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kourtney J.A. Knop, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent C.J. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

In these consolidated appeals, we consider defendants' arguments that their parental rights to Cara (a fictitious name), who is now five years old and who has been in foster care since she was three days old, were erroneously terminated. Finding no merit in defendants' arguments, we affirm.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:

(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 . . .;

 

(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.

 

See also A.W., supra, 103 N.J. at 604-11.

Following a three-day trial that ended on January 5, 2012, the trial judge rendered an oral opinion and entered judgment terminating defendants' parental rights to Cara.

Defendants separately appealed. The child's mother, defendant S.J., argues:

THE TERMINATION OF S.J.'S PARENTAL RIGHTS TO HER DAUGHTER SHOULD BE REVERSED BECAUSE [THE DIVISION] DID NOT PROVE [ALL FOUR PRONGS] BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION IS NECESSARY TO PROTECT [CARA'S] BEST INTERESTS.

 

In his appeal, the child's father, defendant K.S.C. argues:

I. THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WILL BE SERVED BY TERMINATING K.S.C.'S PARENTAL RIGHTS.

 

A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CHILD'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY HER RELATIONSHIP WITH HER FATHER.

 

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT K.S.C. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS DAUGHTER.

 

C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT [THE DIVISION] MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP K.S.C. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME AND TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

 

1. THE TRIAL COURT FAILED TO MAKE SPECIFIC FINDI[N]GS OF FACT AND CONCLUSIONS OF LAW REGARDING REASONABLE EFFORTS OR ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

 

2. [THE DIVISION] DID NOT PROVIDE SERVICES TO FACILITATE REUNIFICA-TION.

 

3. THE TRIAL COURT FAILED TO CONSIDER REASONABLE ALTERNATIVES TO TERMINATION.

D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

II. THE TRIAL JUDGE R[E]FUSED TO PERMIT TESTIMONY FROM CRUCIAL DEFENSE WITNESSES, IN VIOLATION OF THE DEFENDANTS' DUE PROCESS RIGHTS.

 

III. THE TRIAL COURT RELIED UPON INADMISSIBLE HEARSAY REPORTS IN TERMINATING K.S.C.'S PARENTAL RIGHTS.

 

We find no merit in these arguments.

Regarding defendants' arguments that the decision to terminate was against the weight of the evidence or the evidence as to each prong was not clear and convincing, we resort to our standard of review, which is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," we only disturb factual findings when "manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). In addition, we defer to the family court's "special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412.

The Division became involved in November 2007, shortly before Cara was born. The child's father, defendant K.S.C., reported that defendant S.J. was three months pregnant and using crack/cocaine, marijuana and hard liquor.2 He also reported that Sylvia had a history of suicide attempts and prostitution. Sylvia, who was then eighteen years old, had been involved in the Division's system as a minor, as she had been removed from her mother and placed in a shelter at the age of seventeen.

In December 2007, a Division caseworker met with Sylvia, who acknowledged her pregnancy but denied a current use of alcohol or drugs. She admitted a past history of cocaine and marijuana use, but claimed she had completed treatment for cocaine abuse at Raritan Bay Medical Center in February 2007. The Division referred Sylvia for a substance abuse evaluation, but she failed to appear and refused to enroll in an inpatient treatment program. In April 2008, the Division received a second referral that Sylvia was smoking crack and using marijuana. Upon investigation, Sylvia admitted she had relapsed three weeks earlier.

Cara was born on June 6, 2008. The next day, the Division received a referral from Robert Wood Johnson University Hospital, and Sylvia admitted to a Division caseworker that she would test positive for marijuana because she had recently smoked marijuana. Two days later, the Division conducted an emergency removal, N.J.S.A. 9:6-8.29, and placed Cara in a resource home.

The allegations of drug use were substantiated upon the Division's receipt of Cara's positive meconium screens for marijuana and cocaine. Based on this, as well as Sylvia's admitted drug use, the Division referred Sylvia for parenting skills classes, a substance abuse evaluation and counseling. In June 2008, Sylvia was referred to Open Door Counseling Center and, after her August 2008 initial evaluation, was referred to their intensive outpatient drug treatment program. Sylvia, however, continued to test positive for marijuana and left the program after four months.

In August 2009, Sylvia began attending an intensive outpatient program with Open Door. She was discharged from treatment in September 2009 due to her poor attendance and continued positive screens for THC.

Sylvia finally completed treatment with Journey to Wellness after attending the substance abuse program from April 2011 to July 2011. By that time, Cara was three years old and still in foster care.

In the meantime, multiple psychological evaluations of Sylvia, both alone and with Cara, were completed. As part of the psychological evaluation conducted by Margaret DeLong, Psy.D., in June 2008, Sylvia admitted to a suicide attempt when she was fourteen years old, as well as to an extensive drug abuse history and a history of relapse after completing substance abuse treatment in February 2008. Dr. DeLong concluded that Sylvia minimized her problems and was willing to comply with services "simply because she wants her daughter in her care." Dr. DeLong stated in her report that Sylvia's "mental health problems, substance abuse problems, and lack of self-sufficiency interfere with her ability to provide adequate parenting." Dr. DeLong recommended that Sylvia engage in individual psychotherapy, a substance abuse evaluation and compliance with all treatment recommendations, a psychiatric evaluation, frequent supervised visitation with Cara, and, also, that she obtain a GED or high school diploma and employment.

During a psychiatric evaluation with Alexander Iofin, M.D., in September 2008, Sylvia acknowledged a history of suicidal ideation, self-mutilation, depression and drug use. Dr. Iofin found her to be an "unreliable historian" and observed significant discrepancies between Sylvia's admissions and collateral documents, notably with regard to her use of cocaine during her pregnancy with Cara. Sylvia also admitted to having no current employment and to being dependent on her mother for all financial support. Dr. Iofin diagnosed Sylvia with possible anxiety disorders, bipolar disorder, polysubstance abuse and relational problems. He recommended Sylvia engage in: psychotherapeutic and psychopharmacological treatment modalities; individual and group therapy sessions; an intensive outpatient substance abuse program; possibly lifelong mental health services; and abstinence from illicit drug use. Dr. Iofin also found Sylvia to have a "limited understanding of the severity of her psychiatric problems and [the] necessity to have proper follow up"; he did not find her to be a "minimally adequate parent for any minor child" at the present time and recommended supervised visitation.

Based upon these evaluations, the Division referred Sylvia to Jewish Family & Vocational Service of Middlesex County in May 2009 for in-home individual counseling to address coping strategies, problem-solving, parenting skills, anger management and communication techniques. Counselors observed that Sylvia was "rational, coherent, and articulate, and emotionally and behaviorally stable," but because of her failure to be at home for scheduled sessions and her failure to return phone calls, her case was closed in October 2009. As a result, the court temporarily suspended visitation until she complied with both substance abuse and mental health treatment. Due to Sylvia's continual noncompliance with drug treatment and mental health services, her visitation remained suspended for nearly two years. Not until August 2011, after Sylvia had completed treatment, did the court permit supervised therapeutic visitation.

The record also reveals that, in November 2009, Sylvia was referred to At Home Marital & Family Counseling for in-home individual counseling. She met with Marital & Family Counseling for only one session, expressing "no desire to make changes in her life or regain custody." She instead "expressed her belief that [Cara] would be better off living with her brother or with another family." Counseling was terminated when, after making herself available for only one session, Sylvia failed to be home for her next three scheduled appointments.

On April 5, 2011, Sylvia attended a psychological evaluation with Alan S. Gordon, Ed.D., to assess the appropriateness of reinstating visitation. Dr. Gordon opined that, while Sylvia had made strides, removing the child from her foster parents would cause "enduring harm." Dr. Gordon also noted that despite being given ample time to rectify her behavior and become a competent parent, Sylvia had not seen Cara in more than a year. He concluded that Sylvia's parental rights should be terminated.

Sylvia retained Melissa Rivera Marano, Psy.D., to complete a psychological evaluation and assess her parental capacity with regard to Cara, as well as a bonding evaluation. During her initial evaluation, Dr. Marano concluded that Sylvia's psychological state did not pose a risk of harm to Cara, but "may negatively impact processes such as planning and problem solving." Dr. Marano recommended therapeutic visitations, because, by that time, there had not been any contact between Sylvia and Cara for nearly two years. On August 22, 2011, the court determined Sylvia to be compliant with the Division's requests and ordered supervised visits to go forward.

Alice S. Nadelman, Ph.D., performed psychological and bonding evaluations with Sylvia and Cara on August 10, September 9, and November 16, 2011. During her psychological evaluation, Sylvia admitted her visits with Cara ended because she was not "ready to be an adult," but that she was now ready to be a good mother to both children.3 Sylvia's responses to Dr. Nadelman's questions revealed that certain children's behaviors, which Cara exhibited, might cause Sylvia to resort to corporal punishment. Dr. Nadelman concluded that Sylvia "did not show the resources to understand or deal with a strong-willed child whom she has never parented and who will be enraged and devastated at being taken away from her life-long family." Dr. Nadelman did note, however, that Sylvia's improved functioning and maturity were positive indications of her ability to raise Timmy.

As for Kevin, the record reveals that, in 1998, he pleaded guilty to stalking and burglary and was sentenced to a five-year prison term. He remained on parole throughout this litigation.

At the time of Cara's birth, Kevin, who was then thirty-nine years old, was a resident and participant of the Goodwill Rescue Mission Project, a program which provided substance abuse and mental health services. As a full-time resident of the program, Kevin was unable to care for or seek custody of Cara at her birth.

Dr. DeLong conducted a psychological evaluation in July 2008. She found that Kevin minimized his problems by attempting to place the focus on Sylvia. Dr. DeLong also found that Kevin was dismissive not only of his drug use, but also of his criminal history, which included an armed robbery that Kevin maintained "never happened." Kevin admitted to having been depressed and suffering from anxiety attacks, and Dr. DeLong found he demonstrated symptoms of bipolar disorder.

In addition, Dr. DeLong found that Kevin "demonstrated an expectation for his daughter to meet his own emotional needs." She recommended that he participate in individual psychotherapy to monitor his bipolar symptoms, a substance abuse evaluation with random urine screens, a psychiatric evaluation and parenting skills training, and continue to participate in supervised visitation with Cara. Dr. DeLong also concluded that Kevin was not in a position to care for Cara or meet her needs on a daily basis. As a result of admitting use of heroin and cocaine during the psychological evaluation, Kevin was referred to a substance abuse evaluation with Catholic Charities, which closed his case after two negative urine screens.

Dr. Iofin evaluated Kevin in August 2008. Kevin denied any psychiatric or substance abuse problems and specifically denied ever having used cocaine and heroin, although he did admit to using marijuana. Dr. Iofin found Kevin to be an unreliable historian and diagnosed him with polysubstance abuse, affective disorder, bipolar disorder, anxiety disorder, personality disorder, and antisocial behavior. Dr. Iofin recommended lifelong follow-up with mental health professionals, including treatment in a mental health clinic using variations of intense treatment. He did not find Kevin "capable [of taking] care of any minor child as a minimally adequate parent" and only advised supervised visitation.

Initially, the Division had referred Kevin for counseling with New Brunswick Counseling Center, but Kevin failed to cooperate and instead went to Raritan Bay Mental Health at various times between October 2008 through February 2009. Kevin also declined a psychiatric consultation. Kevin claimed, without support, that he received mental health treatment through the Veteran's Administration.

On October 14, 2009, the court suspended Kevin's visitation until he attended a meeting at Adoption House. Kevin was subsequently incarcerated and was in and out of jail during the pendency of this trial. His visitation rights remained suspended throughout the trial.

In March 2010, Kevin was evaluated by Chester E. Sigafoos, Ph.D., who found Kevin "inconsistent, if not deceptive, and not totally forthcoming" in his reporting. Dr. Sigafoos concluded that the extent and severity of Kevin's psychological dysfunction could not be determined, noting significant discrepancies between Kevin's arrest history and reported military service.4 Dr. Sigafoos recommended that Kevin engage in a dual treatment program to address both his substance abuse issues and his bipolar disorder and individual therapy and concluded Kevin was not able to safely and effectively parent Cara without further treatment.

Dr. Nadelman performed a psychological evaluation of Kevin in September 2011 during which Kevin expressed a desire to have his daughter in his care as he believed he would be a better parent and he believed his daughter's stronger attachment was to him. Kevin minimized his daughter's relationship with her lifelong foster family referring to them as "paid babysitters" and "play buddies"; he claimed he was "sure my child can distinguish between people that love her and people that do not." He showed little understanding of Cara's needs and "seemed to assume that she would want and feel whatever he did." He again minimized his criminal history, admitting only after questioning that he had been incarcerated for the past eight months for what he claimed was a "technical violation" of his parole in June 2010. Kevin also denied any inappropriate behavior during his visitation despite its suspension in June 2010 and denied evidence that suggested the visit was traumatic for Cara due to Kevin's "angry yelling and threatening of the [Division] worker." Dr. Nadelman concluded that Kevin showed virtually no understanding of Cara's needs or feelings and his "impatience, low frustration tolerance and periodic angry outbursts would present significant risks to [Cara], who can be a defiant and provocative child." Dr. Nadelman opined that Kevin's parental rights to Cara should be terminated and that there would be a risk of harm to Cara if he resumed any contact with her.

The first prong of the statutory test examines whether the parent has harmed or will continue to harm the child if the parent-child relationship is allowed to persist. K.H.O., supra, 161 N.J. at 348. "Harm" is defined as anything that threatens the child's "health and development resulting from the parental relationship." Ibid. Although a "particularly egregious single harm" may satisfy the standard, the court should focus "on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. In addition, the harm need not always be physical. "Serious and lasting emotional or psychological harm to [the child] as the result of the action or inaction of [her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Likewise, "harms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents, 'the severing of which would cause profound harm . . . .'" N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (quoting J.C., supra, 129 N.J. at 18).

The trial judge found, in addressing the first prong, that Sylvia's substance abuse problem had harmed the child because it made Sylvia unavailable as a parent. He also found, in addressing the second prong, that Sylvia was either unable or unwilling to address the problem for a significantly long period of time while the child resided in foster care. Kevin's unavailability due to incarcerations and the other problems briefly outlined above fully supported the judge's conclusion that, as to both parents, the first and second prongs were clearly and convincingly proven.

That the Division made reasonable efforts in providing services to both parents to address the harm cannot be seriously questioned.5

And the judge's conclusion that all these circumstances clearly and convincingly demonstrated that termination of the parental rights of both defendants would not do more harm than good is also entitled to our deference. There was no doubt that the child was bonded to the foster parents; the judge found that the foster parents are the child's psychological parents: "They are the people that she turns to when days are terrible. They are the people that she seeks for comfort. They are the people she . . . turns to for love and affection and safety. . . . They wish to adopt; they have done so since the beginning. They have been stout in their support of this child. They have done everything that we would ask parents to do." The judge determined that Kevin could not be viewed as ever being able to parent this child and that, although Sylvia had made strides, the child had a right for permanency after the passage of many years since she was removed from her mother.

We are satisfied that all four prongs of the statutory test were met by clear and convincing evidence.

Kevin has also argued in his Point II that the trial judge erred in denying a request for an adjournment, thereby precluding his expert's testimony. His contention that the judge denied him the opportunity to call Dr. Marano as a witness because of the judge's scheduled vacation is simply not accurate. The record reveals that, in October 2011 by which time the child had already been in foster care for three years the judge set the matter down for trial to occur on December 5 and 8, 2011. A third trial day, January 5, 2012, was provided in order to give defendants an opportunity to have Dr. Marano appear. Kevin's counsel advised the court on January 5, 2012, that Dr. Marano was ill and could not attend. The judge denied the request based upon the age of the case and, more importantly, the lengthy period of time that the child's future family life had been in an uncertain state; the experienced judge said at the time:

The fact remains that this particular case was started in October of 2009 . . . . This case has been going on for [in excess of] 24 months. Which is in two at least two times more than the statutes envision. But more importantly[,] it's an excessive period of time for [the child] to be out of the home placed without a determination being made as to the permanency, stability, and security of [her] placement. . . . A trial has been commenced. And to ask this trial to delay permanency for an additional period of time is just beyond what I feel I can grant. . . . With that as a backdrop and having reviewed and understanding everything that's happened in this case, because it's generally been under my supervision for this entire time, I can't bring myself to say yes to your request. I just can't do it. I think [the child] deserves better from us.

 

The judge's denial of the adjournment request fell well within the bounds of sound judicial discretion. Moreover, Kevin can show no prejudice from that ruling. The judge admitted Dr. Marano's expert report in lieu of her live testimony. If any party was prejudiced as a result it was the Division, which had no opportunity to cross-examine this witness.

We find all the other arguments presented by these defendants to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1The Division of Youth and Family Services assumed by law the name Division of Child Protection and Permanency on June 29, 2012. L. 2012, c. 16.

2We will refer to these defendants by the fictitious names, Kevin and Sylvia.

3On February 8, 2011, Sylvia gave birth to another child, Timmy (a fictional name). The Division has not commenced litigation in connection with Timmy, who has remained in Sylvia's care during the course of this litigation.

4Dr. Sigafoos concluded that "[i]f [Kevin] was on active duty during the time frame 1987 to 1991 then how could he have been arrested on six different dates during the same time frame? If the criminal records are accurate, then this client has been lying about his military service history."

5Although not argued by either parent or the law guardian, we are concerned with the suspension of both parents' visitation for lengthy periods of time that may have been a consequence, in whole or in part, of their non-compliance with offered services. Parents are entitled to visitation with their children, see N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 177-80 (2010), and children are entitled to visits with their parents, N.J.S.A. 9:6B-4(e); N.J.A.C. 10:122D-1.1(a). The discontinuation of those rights without a valid reason is relevant to whether the Division has met the third prong of the statutory best interests test. I.S., supra, 202 N.J. at 177-80. If the safety of the child is at risk due to a parent's continued drug use, supervised visitation may be appropriate. See N.J.A.C. 10:122D-1.15(a)(6). But a parent's lack of cooperation with services standing alone is not a permissible reason for curtailing visitation. Ibid.