NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.F.

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NOT FOR PUBLICATION WITHOUT THE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.

M.F.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.F.,

Minor.

_____________________________________

October 15, 2014

Argued September 9, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-0082-12.

Adrienne Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;

Ms. Kalosieh, on the brief).

Deirdre A. Carver, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Carver, on the brief).

Karen A. Lodeserto, Designated Counsel, argued the cause for minor D.F. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Lodeserto, on the brief).

PER CURIAM

M.F. appeals from a September 20, 2013 final judgment terminating her parental rights to her son David, now three years old.1 She contends that the Division of Child Protection and Permanency did not prove that termination of her parental rights was in her son's best interests, N.J.S.A. 30:4C-15.1a(1)-(4). She also claims that she was denied due process in a hearing in which she sought visitation pursuant to N.J.S.A.

9:2-4.1, and that her counsel provided ineffective assistance. The Division and the Law Guardian oppose defendant's appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm.

M.F., then twenty-one years old, was convicted by a jury in 2007 of two counts of aggravated assault, N.J.S.A. 2C:12-1b(7), and two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. The victim, who had fractures of varying ages to her left leg, left elbow and ribs, was her five-week old daughter.2 M.F. was sentenced to a seven-year prison term. Following her conviction, she made an identified surrender of all three of her children to her father and stepmother, who subsequently adopted them. M.F. was paroled in 2010 after serving nearly two and one-half years in prison.

In February 2011, the Division received a referral from medical personnel that M.F. was pregnant and reporting that she could not have contact with the baby as a result of her conviction.3 David was born on April 29, 2011. Three days later, the Division executed an emergency removal and placed David with his maternal grandfather and step-grandmother. The Division was subsequently granted custody of the baby.

M.F. had supervised visitation with David until July when the court granted the Law Guardian's motion to suspend visitation pursuant to N.J.S.A. 9:2-4.1.4 M.F. did not move to reinstate visitation until December 2012, two months prior to the scheduled guardianship trial.

On the return date, her counsel argued that the statute, entitled "Person convicted of sexual assault, custody of, visitation to minor child; denied, exceptions" did not apply to M.F. as she had never been convicted of sexual assault. The court rejected that interpretation based on the plain language of the statute and noted the burden on M.F. to prove by clear and convincing evidence that visitation would be in David's best interest. M.F.'s counsel advised the court that M.F. would not testify at that hearing at which she bore the burden of proof, but would, instead, wait to testify until the guardianship trial when the Division bore that burden. In light of M.F.'s decision not to testify, and in the absence of any other evidence, the court denied the motion.

At the guardianship trial, the Division presented the testimony of the Division caseworker responsible for David. The worker testified that she had been involved with M.F. and all of her children, the first of whom was born in 2003 when M.F. was seventeen. The caseworker described the services provided to M.F. at that time, which included parenting classes, daycare so that she could continue to attend high school, counseling and assistance from the Visiting Nurse Association (VNA). Admitted into evidence was the VNA's report from July 2004 that despite weekly visits over the course of more than eight months stressing the importance of infant stimulation and play, the child was only ever observed in a stationary seat and M.F. only rarely observed to pick up or play with the baby. The worker noted that while M.F. was compliant with counseling services, she failed to make progress.

The worker testified to the Division's removal of M.F.'s two oldest children in 2005 following the discovery of the injuries suffered by her second child, the parents' explanation that the child had rolled over and caught her arm behind her, that the child weighed less at five weeks than she had at birth, and M.F.'s refusal to consent to having her admitted to the hospital and having her older child examined by hospital personnel. The worker also related the Division's subsequent removal of M.F.'s third child in 2006, shortly after his birth.

The worker testified that following the referral in 2011 prior to David's birth, the Division provided services to M.F. in the form of food and rental assistance but was not empowered to take legal action because there were no children involved. According to the caseworker, the Division removed David after his birth because M.F. had no clear plan for the baby and her history of child endangerment and aggravated assault. The Division arranged for an immediate psychological evaluation and put services in place recommended by the evaluator, Dr. Lee. Specifically, the Division arranged parenting and anger management classes, domestic violence counseling and in-home counseling. While M.F. complied with all services and completed the classes, the providers reported that she gained little from them. The in-home counselor recommended that counseling end as M.F. would not benefit from further therapy. The worker testified that the Division terminated that therapy and referred M.F. to a new counselor, Ms. Millemann.

Ms. Millemann, a licensed professional counselor, testified as an expert on behalf of the Division. She treated M.F. over six months immediately proceeding the guardianship trial. She explained the goals of treatment as allowing M.F. to gain insight into her behavior, demonstrate healthy and appropriate decision-making and recognize the needs of others. Ms. Millemann testified that the only goal M.F. managed to make any progress in meeting was the second regarding decision-making.

The counselor opined that while M.F. demonstrated better decision-making by remaining employed, she had no insight into her role in the harm that befell the daughter whom she was convicted of assaulting. M.F. took no responsibility for the baby's injuries, adamantly maintaining that it had been her abusive paramour who had harmed the child. Ms. Millemann testified that M.F. viewed herself as the victim and could not see her part in what had happened, even if, as she maintained, it did not happen at her hand. The counselor explained

Given the amount of treatment that [M.F.] had received when she was incarcerated, any additional counseling coming out of the incarceration, if she were [the] victim of domestic violence and this has occurred and she has received this level of counseling in the variety of forms, there is typically an awakening for a person, you know there's typically a time where a person says, "I had some responsibility here. Even if I am a victim, I have some responsibility, I own some of this."

Ms. Millemann testified that M.F., despite all of the counseling she had been provided, has never had that awakening and possesses no insight into her past. The counselor also testified that M.F. made no progress in recognizing the needs of others, particularly her children. She viewed her father and step-mother with anger and animosity and was not able to recognize or appreciate what they have done by taking in her children, the positive role they have played in their lives and how the children might be affected by the severing of that bond. She persisted in the view that her children "would receive her with open arms" and was not open "to experiencing something different or seeing it in a different kind of context." Ms. Millemann testified that M.F. participated in the therapy "because she liked having an outlet, someone to talk to, someone to understand her" but made no real progress toward her therapeutic goals.

Dr. Lee, a licensed psychologist, testified to the three psychological evaluations he performed of M.F., the first, two weeks after David's birth, the second nine months later after M.F. had engaged in services, and the third shortly before the start of the guardianship trial, as well as to the bonding evaluations he conducted. He reported that M.F. was the mother of four children, fathered by three different men, none of whom remained in her care. He testified that his initial impression of her as having "rather ingrained and maladaptive personality and character traits" that adversely affect her functioning had not changed over the course of his evaluations despite her having participated in individual counseling, parenting and anger management classes and awareness of domestic violence training. He noted that unsurprising because, as he explained, maladaptive personality and character traits tend to be fixed and enduring and are generally less treatable than mental illness. Whereas those with mental illnesses, such as severe depression, are often distressed by their symptoms and driven to seek assistance, individuals with traits such as narcissism are often unaware that they are self-absorbed or are untroubled by the fact, rendering their prognosis guarded or poor. Such individuals have more difficulty appreciating how those traits impair their relationships and affect those around them.

Dr. Lee found that despite the services provided by the Division, M.F. "continues to be psychologically much less mature and much less developed than expected for an adult," with "rather narcissistic and self-serving tendencies." He testified that she lacked empathy and her knowledge of parenting and childrearing remained strikingly limited and poor. He also noted that her heightened level of resentment and anger adversely affected her ability to perceive and understand events. He found no bond between M.F. and David, and he did not recommend that she be the independent caregiver of a minor child at any time in the foreseeable future.

Dr. Lee testified that David was bonded to his maternal grandparents with whom he had lived his entire life. He found that David had formed a significant and positive attachment and psychological bond with each of them and that "there is a significant risk of [David] suffering severe and enduring psychological harm if his relationship with these current caretakers was permanently ended."

M.F. testified in her own behalf and presented the testimony of her expert Dr. Whitehead. M.F. told the court that she had nothing to do with her daughter's injuries. She testified that her paramour, the baby's father, had injured the child and that her lawyer prevented her from testifying at her criminal trial. She admitted that she had been the child's primary caretaker and that the baby weighed less at five weeks of age than she had at birth. M.F. felt that the Division had not done anything to help her. She admitted telling Dr. Lee that she was "programmed out" by which she meant that she had taken so many parenting classes that she "didn't think [she] could really learn anything new because [she] had so much information packed into [her]."

Dr. Whitehead, a clinical psychologist, testified that M.F. had completed an extensive number of services required by the Division. He administered two personality assessments, neither of which was "significantly supportive of her ability to parent" and two assessments to measure potential for capability of parenting and for child abuse, which "suggest that maybe the opportunity [to parent] ought to be initiated, or at least investigated." Dr. Whitehead opined that M.F.

was capable of parenting, but the level of the readiness level has not been reached. But with therapeutic involvement with parent and child, visitation, probably a rehash of . . . specific parenting training, I think there's potential. There's a possibility. There's a likelihood that this parent is capable of managing a child.

He found no evidence of a bond between M.F. and David but testified that the positive interaction he observed between the two in the bonding evaluation suggests "that with therapeutic involvement [in] the parenting, and especially with scheduled visitation, attachment and bonding is likely." He assessed the risk to David posed by termination of M.F.'s parental rights to be "slim to none."

After summarizing the testimony at length and reviewing the controlling standard, Judge Tassini entered judgment for the Division terminating M.F.'s parental rights. In a thorough and thoughtful opinion from the bench in which he reviewed the testimony of the witnesses, assessed each witness's credibility and set forth what he found significant about the testimony in relation to the best interests standard, the judge carefully explained how the Division proved each of the four prongs of that standard by clear and convincing evidence.

Addressing the first two prongs, the judge found that "[t]his is a woman who is intelligent, but according to Dr. Lee, whom I found to be credible, and Ms. Millemann, whom I found to be credible, and even her own expert, is not ready for parenting." The judge noted that M.F. had been the primary caregiver of her daughter when that "child suffered brutal violent injuries" for which M.F. took no responsibility. The judge found M.F.'s repeated assertions that she lacked any knowledge of the child's injuries "troubling, because this child was badly, badly hurt and it is not credible for the mother not to acknowledge knowledge." Recounting M.F.'s abusive relationships, the judge explained

part of overcoming that history is an acknowledgment of what she did herself in failing to come to the aid of [her daughter.] And she's been convicted herself of endangering and assault. I have to accept the jury's verdict that [M.F.] herself is guilty of the criminal assault and the endangering. And I do accept the testimony that [M.F.], despite numerous services, would endanger this very young and vulnerable child.

Based on the testimony of M.F. and the State's experts, the judge found that because M.F. was unwilling or unable to accept responsibility for her part in the serious injuries inflicted on her older child, she could not eliminate the harm facing David. With regard to the third prong, the judge found that the Division had provided M.F. with extensive services, but that she had repeatedly been reported as failing "to make progress with the goals described." As explained by the State's experts, the problem was not with the services but with M.F.'s ingrained and maladaptive personality and character traits that impeded her ability to attain her goals.

The judge found that the State had proved the fourth prong by clearly and convincingly demonstrating that the bond between David and his grandparents was "present and strong" and that termination of that relationship, in the opinions of all the experts who testified, would harm the child. The judge summed up his findings with the following

This is a woman of intelligence, but, because of these characteristics described by Dr. Lee, is unable to progress. She stood by when a weeks' old baby was terribly and horribly injured by one of her paramours. She is unable to protect children and it appears that that will be the case for the foreseeable future, although we always hope that there is progress. And I think M.F.'s testimony was unrealistic and not credible.

I find that the standards in N.J.S.A. 30:4C-15.1a are met; that they were proven by clear and convincing evidence, and I will enter an order of termination of parental rights.

The law governing termination of parental rights is well settled. The standards are codified and set forth in a four-

prong test. N.J.S.A. 30:4C-15.1a. Termination is

permissible only if the Division presents 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.

[Ibid.]

The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

Our review of the trial court's application of these standards to the facts of record is limited. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472

(2002)). Even where the appellant "allege[s] error in the

trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom," deference must be afforded

unless the court "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, 279 (2007) (citations omitted).

Our review of the briefs, appendices and the entirety of the trial transcripts convinces us that Judge Tassini's findings are amply supported by the record. The evidence that M.F. posed an unacceptable level of risk to David that she either could not or would not eliminate is overwhelming. The judge rightly rejected M.F.'s expert's view that despite his own personality assessments that did not support an ability to parent, M.F., although now "not ready" to parent, could possibly one day do so with therapeutic intervention. That view ignores the intense efforts made by many different providers over several years to assist M.F. in acquiring the skills necessary to be an adequate parent and M.F.'s own view that she was "programmed out" and had nothing more to learn.

The proofs soundly establish that David was thriving in the care of his grandparents, who also have custody of David's three siblings. We reject M.F.'s argument that the Division should have placed David with her sister, who would have facilitated visitation between M.F. and David. The argument ignores that N.J.S.A. 9:2-4.1b prohibits visitation to those convicted of child endangerment in the absence of clear and convincing evidence that visitation would be in the child's best interests. M.F.'s supervised visitation with David ended two months after his birth when the Law Guardian moved to terminate it under the statute. M.F. did not move to reinstate visitation for over sixteen months, doing so only weeks before the scheduled guardianship trial and without the proofs required.

M.F.'s arguments that the judge denied her due process at that hearing and that her counsel rendered her ineffective assistance are meritless.5 R. 2:11-3(e)(1)(E). The record amply demonstrates that the judge did not chill M.F.'s proofs or establish "an artificial bar to her meeting the required standard of proof." The judge did no more than remind counsel that M.F. bore the burden and signal that it would be difficult to vault without her testimony. Counsel made no proffer and presented no proofs at that hearing.

Accepting M.F.'s argument that her counsel's performance at the hearing fell below an objective standard of reasonableness, thereby establishing the first prong underStrickland, her claim founders on the prejudice prong. Upon review of the entire record, it is clear beyond doubt that had counsel mustered all available proofs, including M.F.'s testimony, the result would not have been different. See B.R., supra, 192 N.J. at 311 (noting by example "if the panel accepts as true appellant's representations regarding the lawyer's shortcomings but determines, on the basis of the full record, that the outcome would not have changed, that will be the end of it"). There was simply no evidence for counsel to draw upon that could have demonstrated clearly and convincingly that visitation with M.F. would have been in David's best interest.

We affirm the termination of M.F.'s parental rights substantially for the reasons expressed by Judge Tassini in his thorough and thoughtful opinion from the bench on September 19, 2013.

Affirmed.

1 This is a fictitious name.

2 The child's father had already pled guilty to assaulting the child.

3 Although medical personnel reported that M.F. had advised the father could care for the baby, she has subsequently claimed that David was conceived as a result of a rape by an unknown assailant. She did not report the rape to the police. No father has ever been identified.

4 That statute provides in pertinent part

b. Notwithstanding any provision of law to the contrary, a person convicted of . . . endangering the welfare of a child under N.J.S. 2C:24-4 shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded. [N.J.S.A. 9:2.4-1b.]

5 The Supreme Court held in N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-09 (2007), that parents are entitled to effective assistance of counsel in termination proceedings and that the Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), standard applies.