NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4721-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.R.R. and W.R.S.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP OF G.R.R., a minor.

___________________________________

September 24, 2013

 

Submitted September 11, 2013 - Decided

 

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FG-07-81-11.

 

Joseph E. Krakora, Public Defender, attorney for

appellant A.R.R. (Albert M. Afonso, Designated

Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for

appellant W.R.S. (Marc D. Pereira, Designated

Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant Attorney

General, of counsel; Kendra Andrews, Deputy Attorney

General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor G.R.R. (Nancy P. Fratz, Assistant

Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, the biological parents of G.R.R., a four-year-old autistic girl, challenge the final judgment of the Family Part terminating their parental rights to this child. Both parents argue the Division of Youth and Family Services1 (Division) failed to meet its burden of proof under the four-prong criteria established by the Legislature in N.J.S.A. 30:4C-15.1(a). Specifically, defendants argue the Division did not establish, by clear and convincing evidence, that G.R.R. suffered actual harm while in their custody, or that the termination of parental rights is warranted to protect G.R.R. from the risk of further harm to her safety, health, and natural development.

We disagree. The record shows the Division presented overwhelming evidence of defendants' parental unfitness and of their inability or unwillingness to provide a safe and nurturing environment for this special-needs child. We thus affirm substantially for the reasons expressed by Judge Stephen J. Bernstein in his oral opinion delivered from the bench on April 9, 2012. The following summary of the evidence presented at trial will provide a factual context to our legal conclusion.

I

At the time of this appeal, G.R.R.'s mother, A.R.R., was forty-six years old; at age fifty-five, her father, W.R.S., is nine years her mother's senior. Both parents were born in Puerto Rico. Although never married, defendants have lived together as a couple since approximately 1995. Their first child, a boy identified here as W.R., Jr., is now twelve years old. The Family Part terminated defendants' parental rights to W.R., Jr. when he was approximately three years old.

W.R.S.'s first cousin, Mr. R., was originally W.R., Jr.'s foster father. He adopted the child soon after the court terminated defendants' parental rights to the boy. Mr. R. is also G.R.R.'s foster father and wants to adopt her as soon as is legally possible. Mr. R's efforts would thus permanently reunite brother and sister as members of the same household.

In September 2009, approximately two months after she was born, the Division executed an emergency removal of G.R.R. pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30, thereby taking physical and legal custody of the child. At the time of this intervention, both defendants had long been recipients of the Division's services. In fact, the Division first became involved with the family eight years earlier in February 2001, when W.R., Jr. was three months old. The Division responded to reports of A.R.R. hearing voices. This psychiatric crisis resulted in A.R.R. arming herself with a knife and going into a closet to investigate the voices. This episode is but one of many incidents of psychiatric problems exhibited by A.R.R.

The record developed before the trial court is replete with evidence documenting A.R.R.'s chronic and severe psychiatric illness. As a means of self-medicating or for other more nefarious reasons, A.R.R. compounded the problems caused by her mental health issues by abusing addictive pain medication and using illicit drugs. As a result, she has been diagnosed with bipolar disorder, opioid dependency abuse, and borderline antisocial personality disorder. She first exhibited symptoms of psychiatric disorder at age thirteen, when she made multiple suicide attempts.

A.R.R.'s life continued to spiral out of control after she gave birth to her first child, W.R., Jr., in 2000. She exacerbated her psychiatric problems by abusing heroin and methadone. The insidious combination of her mental illness and drug addiction also explains her involvement with the criminal justice system. She has been arrested and incarcerated a number of times for drug possession and related property crimes like shoplifting.

W.R.S. has also been diagnosed with mental health issues. He admitted to anger management problems and has two documented prior incidents of domestic violence against A.R.R. Almost a year after W.R., Jr. was born, W.R.S. left W.R., Jr., an infant at the time, with relatives for two weeks. After the two weeks had passed, W.R.S. "refused" to return and take custody of his son. The Division investigated the claim and substantiated that W.R.S. had committed an act of child neglect. A.R.R. was incarcerated at the time.

The Division eventually sought to terminate defendants' parental rights over W.R., Jr. As previously noted, W.R.S.'s cousin, Mr. R., and his wife agreed to be the boy's foster parents pending the outcome of the termination trial. Bonding evaluations established that W.R., Jr. had psychologically bonded to his foster parents, Mr. and Mrs. R. Against this evidence, W.R.S. voluntarily surrendered his parental rights to his son. The court terminated A.R.R.'s parental rights after a trial on the merits. The boy was subsequently adopted by the "R" family.

Despite their enormous personal problems making them clearly unfit to assume the enormous responsibilities of parenthood, defendants were again confronted with the reality of having brought another child into the world. Two months after giving birth to G.R.R. in 2009, A.R.R. was hospitalized for two days and diagnosed with full blown AIDS,2 hepatitis C, diabetes, asthma, pneumonia, possible tuberculosis, and methadone maintenance dependence as a treatment alternative for her heroin addiction.

Given the infectious nature of her condition, A.R.R. was placed on medical isolation. She nevertheless failed to comply with these crucial medical precautions. When questioned by Division personnel, A.R.R. denied ever claiming that she had left G.R.R. with drug addicts and refused to believe that she had tuberculosis. She eventually left the hospital against medical advice.

Based on these facts, the Division found A.R.R. had neglected her then infant daughter by exposing her to the risk of an environment potentially injurious to her health, safety, and welfare. Despite her serious physical health problems and psychiatric issues, A.R.R. sought to regain physical custody of G.R.R. without confirming that she did not have tuberculosis.

Acting on the Division's application, the court ordered defendants to be evaluated by a Division psychiatrist. The evaluation found W.R.S. lacked basic parenting abilities. According to the evaluator, W.R.S. "tend[ed]' to think that children must act right and be good. He may have difficulty handling parenting stress. He may tend to treat children as confidant and peer." As to A.R.R., the evaluator concluded that "she may tend to expect that children act right and be good. She may have difficulty handling parenting stress. She may tend to use children to meet self-needs. She may expect strict obedience to her demands. She may view independent thinking as disrespectful."

Despite multiple attempts to provide defendants with a variety of psychological counseling, and psychiatric and drug addiction treatment, both remained noncompliant and unable to gain a measure of stability. Unable to help defendants acquire the necessary skills to parent their daughter, the Division sought leave of the Family Part to forego any further efforts at reuniting defendants with their daughter.

At the permanency hearing held before the Family Part on October 26, 2011, the Division announced to the court that termination of defendants' parental rights was the only relief that directly responded to G.R.R.'s best interests. Both biological parents had failed to address their chronic and severe mental health issues. Although A.R.R. had been drug-free since February 2011, serious concerns remained regarding W.R.S.'s ability to effectively parent his special-needs daughter. By contrast, G.R.R. had been living and thriving with the R. family for two years.3

II

Psychologist Ernesto L. Perdomo was the Division's first witness at the guardianship trial. Dr. Perdomo was admitted without objection as an expert in the field of psychology. He conducted bonding evaluations between A.R.R. and G.R.R., between W.R.S. and G.R.R., and between G.R.R. and her foster parents, Mr. and Mrs. R. In response to counsel's question, Dr. Perdomo gave the following opinion concerning defendants' parenting abilities with respect to G.R.R.:

[A.R.R.] has significant personality problems and a lack of insight. She also has significant medical problems and psychiatric disorders. There's a history of bipolar disorder . . . . There is a pervasive history of drug abuse that are on and off for extended periods of time, and there's the lack of insight. So even if the child is reunified with her, her ability to provide parenting is limited because of all these problems with her personality.

 

. . . .

 

[W.R.S.] appeared to be peripheral to the family life, so the -- the main caretaker of the child is going to be [A.R.R.]. . . . And [W.R.S.] is not going to provide the main parenting to that child at all. He is more peripheral to that.

 

By contrast, Dr. Perdomo opined that G.R.R. was clearly psychologically bonded to her foster parents, characterizing the extent of the child's emotional attachment to this family as "excellent." According to Dr. Perdomo, for practical purposes the foster parents have become G.R.R.'s psychological parents. He opined that G.R.R. would suffer great psychological trauma if her relationship with her foster parents were to be severed. Dr. Perdomo also stressed the importance of G.R.R. being in the same family with her brother.

The Division called caseworker Minerva Munzon as its second witness. She provided an overview of the services the Division had given or made available to defendants. According to Munzon, the primary impediment to reunification between G.R.R. and her biological mother had been A.R.R.'s refusal to treat her severe mental illnesses by taking the psychotropic medication as prescribed to her by her treating psychiatrist. As for W.R.S., the roadblock to reunification for him was his apparent inability or refusal to parent G.R.R. without A.R.R.

Equally as important from the perspective of G.R.R.'s stability is defendants' dysfunctional existence. Munzon testified that A.R.R. was residing in a rooming house. She was seeking temporary rental assistance, but did not qualify without presenting a birth certificate. Munzon acknowledged on cross-examination that A.R.R. had been compliant for approximately thirteen months with the methadone maintenance provided by the Lennard Clinic. However, she noted that all psychological evaluations of A.R.R. indicated a high risk of relapse and future drug use. Munzon also acknowledged that since March 2011, A.R.R. has shown a renewed commitment to reunification. She had been compliant with Division services and with the treatment she had received at The Lennard Clinic.4

Munzon's assessment of W.R.S.'s compliance with services offered by the Division was far more critical.

He didn't make himself available for individual counseling, because he only wants to parent with [A.R.R.]. He says he doesn't want to plan for her on his own.

 

Now in regards to why [t]he Division feels that he can't parent alone, based on Dr. Perdomo's report, he can't parent alone. He feels like he can't parent alone. And, I mean, just -- just having [t]he case for as long as I have, and attending -- supervising visits, as much as I had, with both of them, [A.R.R.] seems more engaged with her, and on that one occasion only that he's changed her diaper he's done it backwards. . . .

 

. . . .

 

I mean there were times during their visits, also, that [A.R.R.] seems to have control of all [t]he visits -- what he's able to do, what he's not able to do, you know, what he can say, what he's not able to say. She's -- It's just -- it's just very strange how what he's able to do and what he's not able to do when it comes to [G.R.R.].

 

Defendants called psychologist Andrew P. Brown as their expert witness on bonding. He performed a psychological evaluation of W.R.S., a psychological bonding evaluation between W.R.S. and G.R.R., and a psychological bonding evaluation between G.R.R. and her foster parents.5 He opined that W.R.S. was fit to parent G.R.R. and that the child was bonded to her biological father. Dr. Brown agreed with Dr. Perdomo that G.R.R. was psychologically bonded to her foster parents. In his opinion, however, it is not odd or unusual for her to be bound both to her foster parents as her caregivers and to W.R.S. as her biological father.

On cross-examination, Dr. Brown testified that he was not aware of the circumstances that led to W.R.S.'s termination of parental rights to his older son W.R., Jr. Specifically, Dr. Brown was not aware that W.R.S. had "abandoned" the minor by leaving him with relatives for multiple weeks. Dr. Brown was also unaware that defendants resided in a rooming house, which the Division had ruled an inappropriate residence for G.R.R. Most importantly, from the perspective of the child's best interest, Dr. Brown opined that G.R.R. was not a special-needs child. Based on his experience in the field of neuropsychology, and having diagnosed individuals with autism before, he noticed no signs of autism in G.R.R.'s behavior during the bonding evaluations. He admitted, however, that his focus during his interactions with her was whether she was bonded to her father. He was unaware that she had been previously diagnosed as suffering from autism.

A.R.R. testified on her own behalf. She claimed that she stopped using illicit drugs when she learned she was four weeks pregnant with G.R.R. At the time of her testimony, she claimed to be fully engaged in the methadone program offered by the Lennard Clinic. She was also participating in individual counseling, marriage counseling, and parenting classes. Although she acknowledged she was HIV positive and had diabetes, hypertension, arthritis, and asthma, she claimed that none of these physical ailments prevented her from caring for her daughter.

Although she was unemployed at the time, A.R.R. testified she was able to work. She was at the time receiving public assistance in the form of $367 per month in food stamps. W.R.S. also gave her $238 per month, presumably based on money he earned working. She also indicated that the Division caseworker told her she would receive approximately $993 per month in support if she regained physical custody of G.R.R. At the time of trial, A.R.R. resided with W.R.S. in a studio apartment, paying $330 per month in rent; they were both willing to move to a larger apartment once G.R.R. returned to live with them, assuming they would qualify for temporary rental assistance.

W.R.S. also testified on his own behalf. He testified that he left G.R.R. in her godmother's house once when A.R.R. was hospitalized with possible tuberculosis. Although he intended to return for her, the child was there for three days before the Division intervened and took custody of her. He testified that he had complied with all Division-offered services, including parenting skills classes, drug testing, and psychological evaluations. When asked directly whether he was able to take care of his daughter, he responded: "I don't see why not."

III

Against this evidence, Judge Bernstein found the Division sustained its burden of establishing, by clear and convincing evidence, that termination of defendants' parental rights over G.R.R. was in the child's best interest. Our standard of review is well-settled. Our Supreme Court has recognized that Family Part judges have, by virtue of their training and experience, a particular sensitivity to the complex, emotionally laden cases that come before them on a regular basis. See Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We thus review the factual findings made by the Family Part mindful of the court's "special jurisdiction and expertise in family matters." Ibid. This enhanced deference is particularly appropriate when the trial judge's findings are based on the credibility of witness testimony. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

In reviewing the Family Part judge's factual findings in support of a decision to terminate a defendant's parental rights, our role is limited. We are bound to uphold the decision if

the factual findings undergirding the trial court's decision . . . are supported by adequate, substantial and credible evidence on the record. Additionally, as a general rule, we must grant deference to the trial court's credibility determinations. However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.

 

[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (emphasis added) (internal citations omitted) (internal quotation marks omitted).]

 

In an action seeking the involuntary termination of parental rights, the Division must establish, by clear and convincing evidence, each of 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. 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-15.1(a)]

 

As the Court has made clear, "[t]he focus of a termination-of-parental-rights hearing is the best interests of the child. Because of the fundamental nature of the parent-child relationship, the burden is on the [Division] to satisfy by clear and convincing evidence [these] four factors." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (internal citation omitted). However, "those four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Id. at 448 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

In applying N.J.S.A. 30:4C-15.1(a), we must also be conscious of the fact that "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). In balancing the competing interest inherent in this kind of determination, the court is obligated to act in the best interest of the child.

Here, we are satisfied Judge Bernstein's decision is well-supported by competent credible evidence in the record and, most importantly, is clearly in the best interests of this four-year-old special-needs child. The Division presented overwhelming evidence of defendants' unfitness to parent this child. Although A.R.R. has temporarily addressed her serious and chronic substance abuse problem, she remains severely ill, both physically and psychiatrically. Her lifestyle remains utterly dysfunctional, despite her efforts at minimizing or denying the severity of the problem. She was not capable of caring for her first child when she was both younger and healthier. Her personal situation has only deteriorated since the birth of this second child.

W.R.S. is equally unfit to parent his daughter. Although he is not physically ill, as is A.R.R., his psychiatric and substance abuse problems remain a significant impediment to his ability to keep his daughter safe and healthy. Most importantly, W.R.S. did not demonstrate any appreciation or remorse for the great harm he caused to his infant daughter when he abandoned her for an extended period of time while her mother was hospitalized. In W.R.S.'s case, his judgment is clearly impaired. He has not acted as a responsible adult in the past, and shows no indication that he is capable of doing so in the present or in the reasonably foreseeable future.

On the question of bonding, Judge Bernstein found Dr. Perdomo's testimony "very credible." Conversely, Judge Bernstein found Dr. Brown's testimony lacking in evidential support and his opinions conclusory and uninformed. In Judge Bernstein's words, Dr. Brown "didn't look like he reviewed very much, [and] had a lot of conclusions without any real basis for those conclusions." By contrast, Judge Bernstein found Dr. Perdomo was thoroughly familiar with both defendants' history of psychiatric disorders. He thus accepted Dr. Perdomo's bonding opinions concerning G.R.R. and her foster parents and rejected the opposing viewpoint expressed by Dr. Brown.

In lieu of restating here the "prong by prong" analysis conducted by Judge Bernstein, we incorporate by reference the findings he made and legal conclusions he reached, as reflected in his oral opinion delivered on April 9, 2012. The record amply supports that G.R.R. has psychologically and emotionally bonded with her foster parents, the only parents she has known in her four years of life. Defendants' involvement in this child's life was limited and destructive. The Division proved, by clear and convincing evidence, all four prongs under N.J.S.A. 30:4C-15.1(a). It is clearly in the best interest of G.R.R. that she be legally eligible for adoption by her foster family.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 A.R.R. was first diagnosed as HIV positive in May 2001, when she was evaluated by Dr. Ashwini Neelgund at the Division's request. Dr. Neelgund noted that A.R.R. reported "a long history of psychiatric illnesses since age thirteen" and multiple past suicide attempts. Dr. Neelgund also diagnosed A.R.R. with bipolar disorder and polysubstance dependence.

3 In an attempt to resolve the matter amicably, the Division requested the matter be referred to mediation between defendants and the R. family. Although the first mediation session was scheduled to take place on January 30, 2012, the record does not include any further information on this subject.

4 The Division ruled out one placement alternative offered by A.R.R., G.R.R.'s godmother, as unsuitable for G.R.R.'s needs and also due to the godmother's medical issues.

5 Dr. Brown's written reports of these evaluations were not included as part of the appellate record.