NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.U.

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NOT FOR PUBLICATION WITHOUT THE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.

A.U.,

Defendant-Appellant,

and

W.A.,

Defendant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.A., a minor.

____________________________________

June 16, 2014

 

Submitted May 6, 2014 - Decided

 

Before Judges Sabatino and Hayden.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-39-13.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kent D. Anderson, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.A. (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

In this guardianship case brought by the Division of Child Protection and Permanency ("the Division"),1 defendant A.U., the biological mother of C.A. ("Cory"),2 appeals from the Family Part's final judgment of August 7, 2013 terminating A.U.'s parental rights. The judgment was entered after a two-day trial, during which the Division presented expert and other testimony and in which neither A.U. nor Cory's biological father, W.A.,3 presented any witnesses.

Appellant contends that the Division failed to prove by clear and convincing evidence that it had fulfilled all four prongs of the statutory factors for termination required under N.J.S.A. 30:4C-15.1(a). In particular, she argues that the court failed to take into adequate consideration her young age, as she was only fifteen years old when she gave birth to Cory. She further argues that the court and the Division did not sufficiently recognize her substance abuse, irresponsibility, and other problems associated with her parenting abilities that she contends were attributable to youthful indiscretion. She maintains that the Division did not sustain its evidentiary burden for terminating the rights of young parents in her circumstance. We reject these contentions and affirm.

The pertinent facts in the record may be summarized as follows. Appellant, who was born in January 1995, grew up as one of five children in a dysfunctional home. Early on in her childhood, she became aggressive, maladjusted, and oppositional, and she began using alcohol and marijuana. Appellant has frequently displayed violent behaviors. She has done poorly in school and has repeatedly tested positive for drug use.

The Division first became involved with appellant's troubled family in or about 2003, and attempted to provide services. In August 2009, appellant became pregnant with a child fathered by W.A. The Division attempted to find programs to provide appellant with emotional and pregnancy support, but she was considerably resistant to these efforts.

Appellant gave birth to Cory in June 2010. The infant was born with a cleft palate that required maxillofacial surgery. Because appellant had not obtained prenatal care, the Division was concerned that appellant and her own parents would not see to it that Cory would get the necessary surgery. The Division identified special services to help appellant, but she rejected them and moved in with her father. The Division also located several appropriate programs for appellant, but she did not cooperate with them.

In November 2010, the Division responded to a report that appellant had been drinking alcohol and neglecting her daughter. The investigators found appellant at the home of a new boyfriend and also in a highly intoxicated condition, having left her infant in the care of the boyfriend's mother. Appellant and her baby were living in a single bedroom, which was cluttered and crowded. The Division received a report that appellant was acting "out of control." According to that report, appellant at times would leave the baby in the care of others after she used drugs and went out for the evening, sometimes not returning until the following morning.

The Division made repeated attempts to provide appellant with programs and services to assist her and Cory. Unfortunately, those efforts were unsuccessful, in large part due to appellant's uncooperative attitude.

As these problems persisted, in May 2011, the Division obtained an order from the Family Part and obtained custody of Cory, with appellant being directed to enter into an emergency diagnostic facility. Cory was placed with a non-related resource family. The court granted appellant visitation with Cory, which she attended only sporadically.

Unfortunately, appellant continued to display significant behavioral problems. Her situation worsened when in January 2012, she got into a fight with W.A. and stabbed him with a knife. Appellant was charged with a juvenile offense and was sentenced to ten days in a detention facility. After her release, appellant had spotty attendance at family team meetings arranged by a program provider, and she again tested positive for marijuana. By the end of August 2012, appellant had been terminated from her "Mommy and Me" program for non-compliance. She was also terminated from her parenting skills program because of poor participation. Meanwhile, Cory was doing well in the care of her resource family.

Eventually, the Division concluded that the termination of appellant's parental rights was the best course of action for Cory. The Division consequently filed a guardianship complaint in the Family Part at the end of August 2012, and also named Cory's father, W.A., as a co-defendant.

During the months leading up to trial, appellant's behavior continued to spiral out of control, and her violent outbursts increased. She disappeared for over a week in January 2013, and was subsequently incarcerated at a youth detention facility from mid-January 2013 through to the end of February 2013. After her release, appellant refused to enroll in a program that offered supervised visitations with her child. She again tested positive for marijuana on two occasions in April 2013.

The guardianship trial took place in June 2013. Appellant did not testify, nor did she present any witnesses. Moreover, she failed to attend the second day of trial without any reason for her absence indicated in the record.

The Division presented unrebutted testimony from two caseworkers and one expert witness. The Law Guardian also presented an expert witness and agreed with the Division's request to terminate appellant's parental rights.

The caseworkers detailed the history of appellant's behavioral problems, her irresponsible conduct as a parent, the many services the Division offered to her, and her repeated lack of cooperation and compliance. As one of the testifying caseworkers explained, the Division ultimately decided to pursue a plan for Cory's adoption, rather than reunification with appellant, because appellant "did not gain any insight as she was continuing to [engage in] destructive behaviors."

The Division presented expert testimony from Dr. Ernesto Perdomo, a licensed clinical psychologist, who made the following significant observations:

[Appellant's] profile suggests that she is egocentric and angry. She may also be characterized by a sense of self importance, suspicious attitude, [and] a socially irritable manner . . . . Although she feigned self-confidence, her behavior is likely to hide a deep insecurity about her self-worth created by past and anticipated humiliation and rejections. Deep resentment is often projected outward, precipitating frequent squabbles, antagonism, and personal and family difficulties. Others may be seen by her as belligerent and antagonistic, thus justifying her defensive posture.

 

Among other things, Dr. Perdomo diagnosed appellant with conduct disorder and oppositional defiant disorder. He described her level of psychosocial stress as "severe," noting that it stemmed from various causes. Dr. Perdomo concluded that these diagnosed psychological conditions and appellant's course of behavior presented significant risks to her child:

Based on the information on hand and the result of the psychological evaluation, [appellant] is a very immature and impulsive individual who tend[s] to be very narcissistic and self centered. She has minimal ability to provide effective parenting to her infant daughter. She will always be a risk to her daughter. . . . She will always be a risk of neglect to the child.

 

[(Emphasis added).]

 

The Law Guardian's expert, Dr. Antonio Burr, echoed these impressions. Dr. Burr, who is also a licensed psychologist, performed his own psychological evaluation of appellant before the trial. He also conducted bonding evaluations of, respectively, appellant with Cory, and of Cory with her resource parents. Dr. Burr found noteworthy appellant's difficult childhood, and also her continued resistance to efforts to help her. As he testified:

[T]he fact that this is a very damaging and dysfunctional [childhood] history is not in itself predictive of how the person is going to react to attempts at engaging her in treatment and rehabilitation and so on. And here lies the problem that [appellant's] attitude and her reaction to these attempts at treatment and clinical engagement were invariably negative. She did not comply. She rebelled. She went away. She did not complete the programs. She engaged in behaviors that were incompatible with the goals of the program. So she either was let go or she dropped out of most of them.

Dr. Burr added the following bleak insights:

In truth, no matter how many programs and treatment opportunities have been provided to [appellant], she has squandered every single one of them so far. And while she is not psychotic from a clinical perspective, she is evidently [compelled by] the strength of her emotions. I wonder whether she is capable of assessing her own self-interest in a rational way.

 

While her need for treatment continues to be acute, she is currently not likely in a good position to benefit from such treatment or services, until she herself determines the need to comply with such. [Appellant] needs herself to wish for a less chaotic or crisis oriented existence.

Dr. Burr did acknowledge that when he observed appellant with Cory in their bonding sessions, the two of them did appear to interact together in a positive manner. Even so, Dr. Burr cautioned that appellant's personal difficulties rendered her incapable of presently serving as an appropriate parent:

As the matter stands, [appellant] is a sporadic presence in her daughter's life, and she has still to resolve basic issues related to identity and direction, before she can start considering how to structure a stable daily life for her own self, let alone plan for this child. Thus, placement with [appellant] does not serve the best permanency interests of [Cory] at this time.

By contrast, Dr. Burr was positively impressed in his bonding evaluation of the resource parents:

[I]t was apparent to this examiner that [the resource parents] are able to provide this child with an adequately structured and ordered environment. Further, they are capable of engaging her interactively and in a didactive manner, as they are attentive and attuned to the child's emotional state and reactions. Most of all, they are capable of meeting [Cory's] needs for attention, soothing, and nurturing care. They are clearly encouraging and supportive of [Cory] and able to meet her developmental challenges in a tender and affectionate way.

 

. . . .

 

In my opinion, offered with a reasonable degree of psychological certainty, the quality of [Cory's] relationship with her foster parents represents a positive basis from which this child could achieve permanency with them.

 

Finally, it is the opinion of this examiner that permanency with the foster parents would not cause more harm than good, and that they have the capacity to mitigate the sense of loss [Cory] is likely to feel over time regarding her biological mother.

 

After considering these proofs, the documentary exhibits, and the arguments of counsel, Judge Carmen Ferrante concluded that the Division had established, by clear and convincing evidence, all four prongs of the statutory criteria for termination under N.J.S.A. 30:4C-15.1(a).4

As to the first prong of the statute concerning the infliction of, or risk of, harm to the child, the judge found that such past harm indeed had been established:

[H]arm and the risk of harm have been proven by [the Division]. The record is replete with parents' history and continued use of drugs and alcohol, criminal arrests, incarcerations, transience, neglect, significant behavioral and psychological issues, and pervasive instability.

 

As to the second prong of the statute relating to the parent's ability and willingness to eliminate the harm, the judge concluded that:

[D]espite numerous opportunities and resources to do so, both parents have been unable and unwilling to eliminate the harm facing [Cory], as well as unable and unwilling to provide a safe and stable home for [Cory]. [Appellant] and [W.A.] both have a history of noncompliance with services. Both have had and continue to have substance abuse and mental health issues and lack stable housing and employment.

 

. . . .

 

Any further delay of permanent placement will add to the harm facing [Cory]. Dr. Burr found that the foster home is meeting all of [Cory's] needs.

As to the statute's third prong, concerning the Division's provision of reasonable services and the lack of viable alternative caregivers, the judge specifically found that:

The Division has provided countless services to both parents. On the totality of the circumstances, the Court is clearly and convincingly satisfied that the Division has adequately explored other options to termination of parental rights and provided reasonable efforts to reunify this family.

Finally, as to the "best interests of the child" factor codified in prong four, the judge concluded that:

The gravity of this decision weighs heavily upon the [c]ourt, and that weight has caused the [c]ourt to review this record again and again in hopes of rendering a decision that will enhance [Cory's] chances at a healthy childhood and future. After lengthy consideration, the [c]ourt finds that the Division has proven this prong by clear and convincing evidence. The [c]ourt has previously found that [d]efendants' continued relationship with [Cory] would be harmful. Kinship legal guardianship is not an option because adoption is feasible. [Cory] needs permanency in a stable, safe, and nurturing home environment, which the resource parents can provide, and [d]efendants cannot, should [Cory] be freed for adoption by [d]efendants. Likewise, given the [c]ourt's previous findings together with [Cory's] strong bond with her resource parents who are committed to adopting her, the [c]ourt must conclude that the totality of the record establishes that termination of [d]efendants' parental rights will not do more harm than good for [Cory].

In now reviewing appellant's contention on appeal that the trial court erred in finding all four termination criteria satisfied, our scope of review is limited. "In such cases, the trial court's factual findings should be upheld when supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. J.G., ___ N.J. ___, ___ (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)); see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Such deference is justified because "the trial court . . . has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). In addition, we must be mindful of the Family Part's "special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "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 N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Applying that well-established scope of review to the record in this case, we affirm the trial court's finding that all four statutory criteria for termination were met here by requisite proof. We do so substantially for the cogent reasons expressed in Judge Ferrante's twenty-five page written opinion dated August 7, 2013. We add only a few amplifying comments.

The central theme of appellant's arguments for reversal is her claim that the trial court did not adequately take into account her status as a young mother. To be sure, we have held that "a parent's age alone will not define whether she can provide adequate parenting or the capacity to avoid physical or emotional harm to her child." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 481 (App. Div. 2012). When confronted with a particularly young parent, "the Division's burden, in [those] exceptional instance[s], is a heightened one, dictated by the special circumstance posed by a child-parent's young age." Id. at 489. In satisfying that burden, the Division must show that it offered "satisfactory services to aid the development of the child-parent's maturation and necessary skills to adequately parent his or her child." Ibid.

Nevertheless, despite the heightened efforts called for in cases of very young parents, ultimately the child's health, safety, and development must be deemed paramount. N.J.S.A. 30:4C-1(a); N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 282-83 (2004). Where the parent's actions place the child in jeopardy, notwithstanding the Division's heightened burden to account for youthful indiscretion, the concerns for the safety, health, and development of the child must nonetheless prevail. L.J.D., supra, 428 N.J. Super. at 491 (terminating mother's parental rights to her child, who she had when she was fourteen, because she "ha[d] not achieved the level of stability and security necessary to care for a young child").

The trial court is thereby faced with the difficult, fact-sensitive, and highly subjective task of balancing "on the one hand, the child-parent's abilities, motivations, capabilities and other familial resources to reach [the] goal of [competent parenting] and, on the other hand, the infant's need for achieving stability and permanency within a reasonable time period." Id. at 489.

The record here reflects that appellant's unstable traits are serious and persisting. The trial court properly did not absolve her of the responsibility to ensure her daughter's safety, health, and development. Although it appears that appellant has not herself physically harmed Cory in any of her reported bouts of aggression and violence, the harm suffered by her daughter can represent a different, but equally destructive one.

As Judge Ferrante recognized, appellant's own emotional instability, violent tendencies, substance abuse, and irresponsibility have landed her twice in juvenile detention, and have precipitated her continual discharge from program after program. Her dysfunctional actions and inactions have resulted in her infant daughter being deprived of a stable home, a nurturing environment, and a constant and unconditional presence of parental love and affection. If left unabated, appellant's actions threaten to doom Cory to the same troubled upbringing that appellant herself suffered.

We certainly recognize, as did the trial judge, that appellant has had a difficult childhood, and that she has deep-seated psychological and behavioral problems that undoubtedly stem from her lack of a stable home. But, appellant's own child should not be forced to wait indefinitely for her mother to gain, if ever, the skills and capacity to provide her with competent parental support and supervision.

The vital goal of permanency cannot be sacrificed when, as here, it is clear that all four statutory criteria for termination have been fulfilled, and that the child has been doing well with her resource parents since her removal. See In re Guardianship of D.M.H., 161 N.J. 365 (1999). There is ample and substantial credible evidence to support the trial court's conclusion that the Division met its considerable burden of proof in this case.

Affirmed.

 

1 Where appropriate, we shall at times use the term "Division" to also refer to the former Division of Youth and Family Services, which was renamed by statute to its present title. See L. 2012, c. 16, 20 (amending N.J.S.A. 9:3A-10(b)).

2 We have fictionalized the name of the minor child.

3 W.A. has not appealed.

4 Those elements are:

(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.