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

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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NOT FOR PUBLICATION WITHOUT THE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 B.C.K.-F. and C.L.F., minors.

____________________________________

November 21, 2014

 

Argued October 8, 2014 Decided

Before Judges Waugh, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0112-13.

Beatrix W. Shear, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the brief).

James D. Harris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Harris, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian,attorney; Ms.Vance, onthe brief).

PER CURIAM

Defendant M.F. (Mary)1 appeals the Family Part's October 11, 2013 order terminating her parental rights to her two daughters, B.C.K.-F. (Betty) and C.L.F. (Carol). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Betty was born in August 2006, and Carol was born in January 2008. R.K. (Ron) is their father.2 Mary has another child, G.F. (Gary), who was born in June 2009, and is not involved in this appeal. Ron is not Gary's father.

The Division of Child Protection and Permanency (Division) first became involved with this family in August 2007. After a series of interventions and court proceedings that are described by the trial judge in her detailed oral decision, the Division sought and received an order terminating Mary's parental rights. Because the appeal in this case focuses on whether termination with a view to adoption by the daughters' foster parents would cause more harm than good, we focus our factual discussion on that issue. We incorporate by reference the trial judge's extended procedural history and factual findings.

In March 2011, the Family Part awarded the Division custody of Betty and Carol and they were placed in a resource home. In April, the resource mother asked for a vacation substitute in May and notified the Division she might not be willing to accept the children back after her vacation. The Division placed the girls with a new resource family as a vacation placement. It kept the children in that placement until June 2012, when the Division transferred the girls to the foster family now seeking to adopt them.3

During a home visit on July 27, 2012, the foster mother told the Division caseworker that the girls had been doing "pornographic things," such as rubbing their vaginal areas during their bath. She also reported that she observed the girls speaking vulgarly. A few days later, the caseworker spoke with the teenaged foster sister, who confirmed that she had observed the girls engaged in inappropriate touching. The foster mother reported that the girls told her they learned some of the conduct from their mother.

On August 1, during a supervised visit with Mary, Carol told her mother that the foster sister was "plucking" her and Betty while the adults were out of the room. The incident was reported to the Division. On August 6, a caseworker asked the foster mother whether her daughter plucked the children. She responded that her daughter did not do so and was not permitted to discipline Betty or Carol. On November 13, Betty told the worker that she was lying when she said her foster sister took "their stuff." She also stated that her foster mother was very nice and she wanted to call the foster parents "mommy and daddy."

In January 2013, the foster mother, who had earlier told a new caseworker the day was inconvenient for a visit, refused to permit her into the home. However, later that day, she allowed the worker to visit. The worker described the home as "not clean," but noted the girls were well groomed and appropriately dressed. She noted no safety hazards.

In February 2013, Ron alleged that Carol told him during a visit that the foster mother spanked her. After the visit, Carol recanted her statement. Nevertheless, the Division investigated the allegations. During the investigation, Betty related that Carol had not told the truth and that the foster mother had not hit them.

In addition, Betty told the investigator that, during every visit, Ron would ask whether they were being hit by their foster parents. If Betty told him they had not been hit, he would say "yes they do, they hit you." Betty said if she told her father they were not being hit, he would say she was lying. According to Betty, Carol told Ron they were hit with a belt because it was what he wanted to hear. Carol was interviewed separately and admitted that she lied about the foster mother spanking her, because her father told her that if she said they hit her, she could come live with him. The Division concluded that the allegations against the foster mother were unfounded.

During a routine review of the foster home, the inspector noted that the foster mother and her biological daughter slept in the same bed, while the father slept in a spare bedroom in the basement. The arrangement facilitated Betty and Carol each having their own room. The inspector also noted that there were no shower curtains in two of the three bathrooms in the home, but the foster mother explained that only the bathroom with a shower curtain was used by the family. There were also no curtains on some of the bedroom windows, but Betty's and Carol's had curtains. The family kept the refrigerator in the garage, but the children had access to food and beverages. At the time of the inspection, Carol was not in school, but the foster mother related that Carol was set to begin school in March. The Division had no concerns about those reports.

The five-day guardianship trial began in July and ended in September. The judge delivered an oral opinion on October 11, in which she found that, with respect to Mary, the Division had met all four prongs of the termination test set forth in N.J.S.A. 30:4-15.1 by clear and convincing evidence. With respect to the fourth prong, she concluded that termination would not do more harm than good. The judge found that Betty and Carol had a secure bond with the foster parents, who wanted to adopt them, and that severing that bond would cause the girls severe and enduring harm. The judge found that the girls had an affectionate tie to Mary, but not a secure bond. She concluded that the girls would not be significantly harmed by the termination of Mary's parental rights. The judge noted that, although there had been some minor issues in the foster home early on, such as the house being dirty and the garage smelling, the problems had been resolved and were no longer of any concern. This appeal followed.4

II.

Mary raises the following issues on appeal

POINT I: THE TERMINATION OF M.F.'S PARENTAL RIGHTS TO HER DAUGHTERS SHOULD BE REVERSED BECAUSE, IN LIGHT OF THE PROBLEMS IN THE FOSTER HOME INTO WHICH DCPP PLANS TO HAVE B.K.-F. AND C.F. ADOPTED, DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF M.F.'S PARENTAL RIGHTS TO THE GIRLS WILL NOT DO MORE HARM THAN GOOD.

POINT II: A GUARDIAN AD LITEM SHOULD HAVE BEEN APPOINTED BY THE COURT TO REPRESENT THE BEST INTERESTS OF B.K.-F. AND C.F.

A.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the 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) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropri-ate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "'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." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc., supra, 233 N.J. Super. at 69).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

"[P]arents have a constitutionally-protected" right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010); see also E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must "institut[e] a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court 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.").

The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title Thirty in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, 7. The statute provides that the Division must prove

(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 four factors are not independent of each other; rather, they "are interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).

Under the fourth prong, the one at issue in this case, the question to be addressed is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering his health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005); see also In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992).

In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parents and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. "[T]he Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

B.

We turn first to Mary's argument that the order granting termination must be reversed because the trial judge should have appointed a guardian ad litem for the children, who were "conflicted" about whether they wanted to live with their mother or foster parents.

The basic role of a guardian ad litem is "'to assist the court in its determination of the incompetent's or minor's best interest.'" J.B. v. W.B., 215 N.J. 305, 332 (2013) (quoting Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.), certif. denied, 152 N.J. 12 (1997)). As the Supreme Court reiterated in J.B.

Certainly not every application affecting an unemancipated child requires appointment of a guardian ad litem. See R. 5:8B ("In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed . . . if the circumstances warrant such an appointment." (Emphasis added)). The decision to appoint a guardian ad litem is reposed in the discretion of the trial judge, see In re M.R., [ 135 N.J. 155, 179 (1994)] and rightly so because the decision is informed by the experience the judge gains as the judge sifts through a daily docket of contested matters.

[Id. at 333.]

Here, the children were represented by the law guardian, who is statutorily empowered "to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings." N.J.S.A. 9:6-8.21. As the Court noted in J.B., id. at 332 n.4, "[t]he basic role of the law guardian is to serve as an advocate for the minor child." Indeed, the law guardian's very purpose is to advocate for the child's position in the manner the law guardian finds to be in the child's best interest. See Div.of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.) ("Law guardians are obliged . . . to make recommendations as to how a child client's desires may best be accomplished, [and] to express any concerns regarding the child's safety or well-being . . . ."), certif. denied, 174 N.J. 39 (2002).

Mary first raised the issue of a guardian ad litem at the beginning of the trial. She did so in the context of what she characterized as the law guardian's failure to advocate for the children's desire to be reunited with their mother and the late service of the report of the law guardian's expert, who had six months earlier recommended Mary be given more time to improve and seek reunification.5 The Family judge then handling the case at that time explained his reasons for refusing to appoint a guardian ad litem as follows

I am unaware of and the [c]ourt has been provided with no authority demonstrating that the law guardian has any duty different from that of any other party to litigation. Unquestionably, the Division has a duty to turn over exculpatory evidence. I am very reluctant, in the absence of case law, to put the law guardian into the same category. And for that reason I do rule, and hereby find, that there was not a duty to turn over the report back in January.

. . . .

. . . I think it was the prerogative at that time of the law guardian to see what would happen over the next six months. And to withhold that report if in her professional judgment it was appropriate to do so.

. . . .

That being so, I think it tends to make the second issue substantially moot. That would be . . . whether there should be a guardian ad litem appointed. I -- there is nothing before me that would lead me to conclude that [the law guardian] lacks the ability to properly advocate for the interests of these two children. And for that reason I am going to deny the request for the appointment of a guardian ad litem.

We find no abuse of discretion in the judge's action.

The record, taken as a whole, reflects that the children expressed differing views about the future on different occasions. In addition, and especially given the children's relative youth, the law guardian had an overarching obligation to advocate in the best interests of the children. As our Supreme Court held in New Jersey Division of Youth & Family Services v. E.P., supra, 196 N.J. at 113,

children's wishes may often not be in their own best interests. For example, children may want to return to their abusive or neglectful natural parents, who have endangered and continue to endanger their lives. In such cases, it may be not only futile, but contrary to a child's best interests to solicit his or her opinion.

In New Jersey Division of Youth & Family Services v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009), which involved a child under ten years of age, we reiterated that the law guardian "actively represents and speaks for the child, [and] has to advocate for the best interests of a child too young to speak for [her]self."

In addition, we agree with the trial judge that the law guardian did not inappropriately withhold the expert report at issue. Rule 5:3-3(f) provides that

Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. At the time of submission of the court's experts' reports, the reports of any other expert may be submitted by either party to the court and the other parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.

The expert's report was not ordered by the court, and therefore not required to be submitted to the court or the parties "upon completion."

C.

Because Mary's substantive appellate argument is limited to the fourth prong of the best interests test, we discuss only that prong. We have, however, reviewed the judge's findings with respect to the first three prongs and conclude that they are fully supported by credible evidence in the record sufficient to satisfy the required burden of proof.

We conclude that the judge's factual findings with respect to the fourth prong are also fully supported by the record. She appropriately relied on the testimony of two expert witnesses, Dr. Linda Jeffrey and Dr. Ronald Gruen, both psychologists.

Jeffrey testified to her opinion that the girls had "an insecure attachment" to Mary, and that "it was unlikely to cause her daughters serious and varying harm if the relationship were severed if they have access to a healthy parenting environment." She also testified that the girls "had formed a secure attachment" to the foster parents and "would []likely . . . experience serious and enduring harm if they had their relationship with the foster parents severed." Jeffrey was opposed to Gruen's earlier suggestion that the birth parents be given more time because (1) there were "not indications that more time would change [their] behaviors," (2) "the delay of permanency is always problematic," and (3) the children "would continue to be diverted from the focus on the developmental task of their own developmental stage."

Gruen characterized Mary's relationship with her daughters as "an acquaintanceship relationship." In his initial report, because he thought there was "potential for true psychological bonding" between Mary and her daughters, Gruen had not recommended termination of parental rights. At trial, however, he testified to his opinion that Mary's parental rights should be terminated because Mary had "lost the motivation" and "didn't follow through" on the steps she needed to take for reunification. He opined that, if Mary's parental rights were terminated, "the girls would miss her, but they would survive and be fine."

Gruen was asked why he no longer supported allowing Mary more time to straighten herself out. He responded

Well, several reasons. Number one, I think this case has been ongoing for almost four years. The girls deserve a permanent plan. I feel that . . . the parents have been given very ample opportunity, and this is about the children. This is about their welfare. From what I saw, that they are bonding in the home. They said that they want to stay there. The girls are doing very well. I saw their report cards. They're settling down and they deserve a better life.

He added that, if parental rights were not terminated, "the girls would suffer significant emotional harm."

With respect to the foster family, Gruen testified that the children were "finally in a home where the parents, the foster parents have told the girls we want you, we love you, we are committed to you." He added: "And, yes, there are some complaints about these foster parents, but I am telling you, they love these children, and they're very passionate about these children." Despite having relatively limited information about the foster parents because he performed a bonding evaluation rather than a psychological evaluation of them, Gruen had no concerns about them.

Because the trial judge's thoughtful and thorough opinion applied the appropriate standard of proof, included factual findings well grounded in the record, and was based on legal conclusions fully consistent with the applicable law, we affirm the order implementing her decision.

Affirmed.

1 We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.

2 Ron's parental rights were also terminated. He has not appealed that decision.

3 After the Division was granted custody of Gary, he joined his sisters at the second resource home. Although he was also transferred in June 2012, he was returned to his father a few months later.

4 We learned during the pendency of this appeal that the foster family and the children moved out of New Jersey. However, any adoption of the girls by the foster parents is still subject to judicial approval in New Jersey.

5 As will be discussed below, the expert at issue subsequently supported termination of Mary's parental rights.