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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

C.C.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.C., a minor.

_________________________________

October 4, 2013

Submitted June 25, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-17-11.

Joseph E. Krakora, Public Defender, attorney for appellant C.C. (Howard B. Tat, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorneyfor respondent(Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.C. (Sean Lardner, Designated Counsel, on the brief).

PER CURIAM

C.C. is the biological mother of K.C., born October 26, 2008. She appeals from the June 22, 2012 judgment entered by the Family Part, following a bench trial, terminating her parental rights to K.C. On appeal, she argues the evidence presented by the Division of Child Protection and Permanency ("the Division") was insufficient to satisfy the third prong of the statutory requirements of N.J.S.A. 30:4C-15.1a. We disagree and affirm.

Immediately after K.C.'s birth in October 2008, hospital staff contacted the Division expressing concern that C.C., who was developmentally delayed and receiving assistance from the Division of Developmental Disabilities, could not properly care for C.C. Hospital staff reported that C.C. was not following feeding directions and other directions related to the care of her newborn. The Division responded by providing nursing and psychological services to C.C.

The Division received a second referral in April 2009, after K.C. had been admitted to the Children's Hospital of Philadelphia ("CHOP"), where she was diagnosed as suffering from a liver disease, which required constant care and medication administered in a particular manner. It was reported to the Division that C.C. had been unable to properly administer the medication. Other concerns expressed by hospital staff included that K.C. had to be placed on a special diet, administered nine to eleven different medications each day, her caregiver had to be able to recognize symptoms of liver complications and be able to seek prompt medical attention if required.

Based upon these reports, the Division sought and received a court order on April 7, 2009, granting it care and custody of K.C., but the Division returned the child to C.C. on May 15, 2009. However, three months later, the Division filed an amended complaint for custody based upon C.C.'s failure to follow recommendations from the nurse assigned to care for K.C. and her failure to permit the nurse to see K.C. on several occasions. The court entered an order granting custody of K.C. to the Division. Thereafter, the Division was unsuccessful in placing K.C. with relatives or friends because the prospective caregivers failed to timely comply with the Division's procedural requirements, and no other persons were identified or came forward as potential placement options.

From the inception of its involvement with C.C., the Division recommended numerous services to her, including early intervention and a psychological evaluation, which was performed by Dr. Gregory Gambone, who recommended a psychiatric evaluation, parenting skills training, anger management, individual and family therapy, as well a vocational assessment. The Division arranged for C.C. to undergo therapy with Dr. Fred Gross and also referred C.C. to the Citizen Advocacy Group (CAG). Notwithstanding these referrals, C.C. did not follow through with CAG, advising that she did not need its services. She missed four of her last eight weekly individual counseling sessions, despite having made significant progress earlier. She advised Dr. Gross that she did not believe she needed further therapy.

Trial on the guardianship complaint commenced in June 2012. C.C. did not appear but was represented by counsel. C.C. advised her guardian ad litem that she had a hernia and was hospitalized at Beth Israel Hospital in Irvington. The court reached out to the hospital but was unable to confirm C.C.'s admission. The Division presented Dr. Linda Jeffrey, who performed the bonding evaluation between the foster mother and K.C. The Division also presented Karline Dubuisson, the caseworker assigned to the matter since December 2010.

Dr. Jeffrey testified that she was unable to perform a bonding evaluation between C.C. and K.C. because C.C. failed to make five separate appointments. The doctor noted that the current foster mother had negotiated K.C.'s transfer from her former foster parents in a "textbook[-]like manner," and although it was a "difficult transition," K.C. eventually developed a "secure attachment" with her new foster parent. She expressed the opinion that severing this relationship would create a risk of causing serious and long-lasting harm to K.C.

In her testimony, Dubuisson reviewed the Division's unsuccessful efforts to place K.C. with relatives and a family friend, described the services the Division offered to C.C., and testified that it was difficult to work with C.C. because she would not cooperate with recommendations. She also testified the Division had difficulty communicating with C.C., explaining that there were occasions when the Division could not find her, could not reach her by phone, and that her supervised visits with K.C. were sporadic. Dubuisson characterized K.C.'s transfer from her former foster parents to the current foster parent as challenging, but believed K.C. had become comfortable in the relationship and that the foster mother was ready, willing, and able to adopt K.C.

At the trial's conclusion, the court delivered its decision. The court was satisfied the Division had met all four prongs of the statutory requirements for terminating parental rights, by clear and convincing evidence. The present appeal ensued.

On appeal, C.C. contends the court erred in reaching the conclusion that the Division satisfied its statutory burden by clear and convincing evidence. Specifically, C.C. urges that the Division failed to establish, by clear and convincing evidence, that it "made reasonable efforts to provide services to assist [her] to correct the circumstances leading to [K.C.'s] placement in foster care" and the trial court erroneously "shift[ed] the burden of proof by requiring [her] to prove what services were required to correct the circumstances leading to [K.C.'s] placement with the Division." We disagree.

The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Ill., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

"The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.

In evaluating the best interests of the child, courts follow a four-prong standard, codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, 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 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).]

"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).

The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because of the family courts' special jurisdiction and expertise in family matters," we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." F.M., supra, 375 N.J. Super. at 259 (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "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, 279 (2007) (internal quotation marks and citation omitted). Applying this standard, we discern ample evidence in the record to support Judge Marvin E. Schlosser's conclusion that K.C.'s best interests required termination of C.C.'s parental rights.

C.C. raises no challenges to the court's findings relative to the first, second, and fourth prongs of the statutory best interests tests. We therefore limit our discussion to the third prong, which required the Division to establish, by clear and convincing evidence, that it made reasonable efforts to assist C.C. in correcting the circumstances that led to K.C.'s removal and that it considered alternatives to terminating her parental rights to K.C. N.J.S.A. 30:4C-15.1(a)(3). C.C. contends the services offered by the Division were "cookie cutter" and not specifically tailored to her needs, despite its knowledge of her special needs and low functioning.

The trial court is charged with evaluating, on an individual basis, the efforts undertaken by the Division to reunite a family. D.M.H., supra, 161 N.J. at 390-91. The dispute here is not that the Division failed to offer any services. Rather, C.C. argues that the services were not tailored to her needs. However, as the trial court observed, "there was no testimony nor evidence of any kind presented on her behalf to indicate what other services may have been appropriate to put in place for her." See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 177-78 (finding defendant provided evidence that DYFS failed to offer tailored services where DYFS "never consult[ed] and cooperat[ed] with [defendant] in developing a plan for appropriate services." (alternation to original)). Therefore, any claim that the services were not tailored specifically to her needs is purely speculative.

It is undisputed that services were provided but resisted by C.C. The Division's obligation is to make reasonable efforts to provide services. See F.M., supra, 211 N.J. at 452. The Division arranged for services in accordance with the recommendations from Dr. Gambone as well as court orders. It was C.C. who failed to avail herself of these services, and there is no evidence in the record that she was physically or mentally unable to participate in these services. Consequently, there is no merit to her challenge to the order terminating her parental rights based upon the Division's failure to provide her with reasonable services.

Finally, C.C.'s contention that the trial court improperly shifted the burden upon her to present what services are reasonable is without merit. The court's finding that C.C. presented no testimony or evidence establishing "what other services may have been appropriate to put in place for her" did not shift the burden of proof. Rather, this finding reflects the court's assessment that C.C. failed to rebut the evidence presented by the Division, which the court, in its factual findings, credited. This credibility assessment by Judge Schlosser is entitled to our deference. A.R.G., supra, 361 N.J. Super. at 78.

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