NEW JERSEY DIVISIO OF CHILD PROTECTION AND PERMANENCY v. S.N.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3468-12T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

S.N.R.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF I.S.R., I.N.R., and I.M.R.,

Minors.

____________________________________

January 17, 2014

 

Submitted December 16, 2013 Decided

 

Before Judges Yannotti, Ashrafi and Leone.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-215-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Katherine J. Bierwas, Designated Counsel, on the brief).

PER CURIAM

Defendant S.N.R. appeals from a judgment entered by the Family Part on March 5, 2013, terminating her parental rights to three children, I.S.R., I.N.R. and I.M.R. We affirm.

I.

S.N.R. and S.R. are the parents of three boys: I.S.R., who was born in June 2003; I.N.R., who was born in December 2004; and I.M.R., who was born in August 2007. S.N.R. has a daughter, I.R., who was born in September 2000 as a result of a prior relationship.

The family first came to the attention of a child protection agency in Virginia in 2004, after I.S.R. was admitted to a hospital for failure to thrive. In 2005, I.N.R. was admitted to a hospital severely malnourished and dehydrated. I.N.R. was removed from S.N.R.'s and S.R.'s care and placed in a foster home. A Virginia court ordered S.N.R. and S.R. to complete parenting skills classes and maintain medical appointments for the children.

I.N.R. was returned to his parents after four months in foster care, but he was readmitted to a hospital in July 2006 for failure to thrive. In October 2006, the Virginia court entered orders declaring I.N.R. to be at risk and directing S.N.R. and S.R. to cooperate with the child protection agency in Richmond, Virginia. Sometime in 2007 or 2008, the family relocated to New Jersey.

In December 2008, the Division received a report alleging that the children were being physically abused and neglected. The Division investigated the report and determined that the allegations were unfounded, but the Division was concerned because S.R. had admitted smoking marijuana, the children did not have beds and the family was being evicted from its apartment. S.N.R. and S.R. agreed to an in-home case plan.

The Division referred S.N.R. and S.R. for substance abuse evaluations and provided them with vouchers to purchase furniture. S.N.R. later tested positive for marijuana. She admitted to two years of drug and alcohol abuse, and she was referred to an outpatient program.

In April 2009, the Division received a report alleging educational neglect of I.S.R. In July 2009, S.N.R. and S.R. agreed to another in-home case plan. They were referred for parenting skills classes, psychological evaluations and substance abuse counseling. They also were provided with furniture vouchers, transportation assistance, and the services of an in-home parenting aide, who was in their home approximately six hours each week.

In January 2010, S.N.R. and S.R. agreed to another in home case plan. They were again referred for psychological and substance abuse evaluations. In October 2010, the Division closed the case, having concluded that the family was functioning independently and there were no concerns for the children's safety. However, in May 2011, the Division received a report from I.S.R.'s school indicating that he had bruises on his face and wrist, and he had reported that S.R. hit him with an extension cord.

The Division's investigators located the family and the children were taken to a pediatric clinic for physical examinations. The physician who examined the children observed bruises on I.S.R.'s face and lacerations on his wrists. The physician noted that these marks were "consistent with inflicted injury." Similar bruising was found on I.N.R. The physician found no visible marks or bruises on I.M.R.; however, I.R. was found to have a fractured finger. All four children had poor hygiene.

Finding that the allegations of physical abuse had been substantiated, the Division effected an emergency removal of the children pursuant to N.J.S.A. 9:6-8.29, and filed a complaint in the Family Part seeking immediate custody, care and supervision. The court granted the application. The three boys were placed together in a foster home. I.R. was placed separately. S.N.R. and S.R. were referred for services.

In August 2011, S.N.R. and S.R. separated. In September 2011, they waived their right to a fact-finding hearing, and S.R. admitted that he beat I.S.R. with a belt because he had written on a wall.

In April 2012, the Family Part rejected the Division's reunification plan, based on S.N.R.'s noncompliance with services, and in May 2012, the court entered an order approving the Division's permanency plan of termination of S.N.R.'s and S.R.'s parental rights to I.S.R., I.N.R. and I.M.R.2

The Division filed its guardianship complaint on June 25, 2012. While the guardianship action was pending, the Division referred S.N.R. for a psychiatric evaluation, individual therapy, anger management services, parenting skills classes, and visitation. The Division also referred S.N.R. for substance abuse treatment, but she never followed through with a substance abuse assessment and did not complete a drug-treatment program. In October 2012, S.N.R. tested positive for marijuana. In addition, S.N.R. was not able to secure stable employment, and from September 2012 to December 2012, she was living in a homeless shelter.

In February 2013, the judge conducted a trial on the Division's complaint. On March 5, 2013, the judge placed his decision on the record, concluding that the Division had established the criteria for termination of parental rights under the best interests test established by N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1(a). The judge entered an order on March 5, 2013, terminating S.N.R.'s and S.R.'s parental rights to the children. S.N.R. thereafter filed a notice of appeal from the court's order.3

II.

S.N.R. argues that the Division failed to establish the four prongs of the best interests test by clear and convincing evidence. She therefore contends that the court erred in terminating her parental rights to the three children.

A parent has a constitutionally-protected interest in raising his or her biological children. Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1982). However, in its role as parens patriae, the State may act to protect children from serious physical and emotional harm, even if this requires a partial or complete severance of the parent-child relationship. A.W., supra, 103 N.J. at 599.

In accord with the standards articulated in A.W., the Division may initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if:

(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).]

The four criteria are not discrete and separate, but overlap to provide a comprehensive standard to identify a child's best interests. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The Division has the burden of establishing each prong of the best interests test by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

The scope of appellate review in a termination of parental rights case is limited. "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)).

A. The First Prong

S.N.R. argues that the Division failed to establish the first prong of the best interests test because the only abuse shown was abuse committed by S.R. She claims that she was not even aware that S.R. had injured the children. She also maintains that the trial judge erred in his assessment of the testimony of the psychological experts. We do not agree.

In his decision, the trial judge found that the evidence clearly and convincingly showed that S.N.R. had endangered the children's health and safety, even prior to her residence in New Jersey. The judge noted that the child welfare concerns in Virginia, which resulted in a four-year involvement with child protective services in that state, were significant and only ceased when the family relocated to New Jersey. The judge said that the child welfare concerns persisted in New Jersey and resulted in the Division's involvement and the provision of services.

The judge found that S.R. had inflicted injuries on I.S.R. and I.N.R. with a belt or extension cord, and stated that S.N.R.'s "claim of ignorance regarding the extreme physical discipline of her children that her children were subjected to is simply not credible in view of the evidence, as the children had marks, black eyes for several days following the incident." The judge pointed out that S.N.R. had failed to intervene and protect the children from potential injuries, thereby placing them at a continued risk of harm.

The judge additionally noted that S.N.R. had not yet accepted full responsibility for her role in allowing S.R. to injure the children. The judge also determined that the children had been harmed by remaining in the "limbo of foster care" as a result of S.N.R.'s persistent failure to perform her parenting functions and provide the children with "nurture, care and support."

We are convinced that there is sufficient credible evidence in the record to support the judge's findings. The evidence clearly and convincingly established that S.R. beat I.S.R. and I.N.R. with a belt or a cord, causing them to sustain physical injuries, and S.N.R. failed to protect the children from such harm.

Furthermore, "the attention and concern of a caring family is the most precious of all resources" to a child, and "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of a child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999) (internal quotations and citations omitted).

The record shows that more than a year passed between the removal of the children from S.N.R.'s care and the filing of the guardianship complaint. During that time, S.N.R. failed to complete the services for which she had been referred, particularly with regard to substance abuse. As a result, the children remained in foster care, without S.N.R.'s solicitude, nurture or care.

We conclude that evidence clearly and convincingly supports the judge's finding that the children's safety, health and development were harmed by their relationship with S.N.R.

B. The Second Prong

S.N.R. argues that the Division failed to establish that she is unwilling or unable to eliminate any harm facing her children. We disagree.

Here, the judge found that the evidence clearly and convincingly established that S.N.R. is unwilling or unable to eliminate the harm facing her children and she is unable or unwilling to provide them with a safe and stable home. The judge found that S.N.R. failed to comply with the Division's various case plans and the services for which she was referred.

In his decision, the judge noted that S.N.R. had attempted to comply with some services, but her continued refusal to accept some responsibility for the children's removal rendered her unable to remedy the initial harm. The judge also took note of S.N.R.'s failure to complete substance abuse treatment and individual therapy, her use of marijuana, her untreated mental illness, her lack of stable housing and her lack of steady employment.

The judge observed that S.N.R. had been involved with social service agencies since 2004. He noted that the Division had provided S.N.R. with services for over four years, but she had not made the changes necessary to effect reunification with the children. The judge concluded that rather than change, S.N.R. "chose to continue living the same life that led to the Division's involvement, essentially treating the Division as a babysitting service."

The judge recognized that S.N.R. recently had made efforts to find employment and complete parenting classes. The judge nevertheless found that S.N.R.'s efforts were insufficient to show that she was willing to eliminate the harm facing the children.

In challenging the judge's findings, S.N.R. points to her consistent attendance at visitation. She also notes that she complied with referrals for psychological evaluations and completed parenting skills classes. In addition, at the time of the trial, S.N.R. was no longer living in a homeless shelter.

The evidence presented by the Division established, however, that S.N.R. had not made sufficient progress in addressing the issues that led to the children's removal from her care. S.N.R. attended substance abuse evaluations, but never participated in substance abuse treatment or demonstrated a sustained period of sobriety.

Similarly, S.N.R. attended psychological evaluations and individual counseling, but never followed through with medical treatment for her depression. S.N.R.'s expert, Dr. Richard Klein, found that she had symptoms consistent with bipolar disorder. However, S.N.R. did not take any medications to treat that disorder and instead chose to "self-medicate" with marijuana.

Furthermore, as we have explained, S.N.R. has had a prolonged history of chronic instability in housing. She lived in a homeless shelter from September to December 2012. Although she reported at the time of trial that she had just moved into a temporary apartment with a new boyfriend and another roommate, there was no proof that this living arrangement could accommodate the three children. Dr. Klein conceded that S.N.R.'s lack of stable housing was an important concern.

Finally, although S.N.R. had completed parenting skills classes, the evidence indicated that she had not benefitted from them. After attending numerous parenting skill classes, S.N.R. still refused to recognize that there was any problem with her parenting. Thus, proof that S.N.R. attended parenting skills classes was insufficient to show that she was willing or able to eliminate the harm to the children.

We conclude that there is sufficient credible evidence to support the judge's findings on the second prong of the best interests test. The record supports the judge's determination that the Division established this prong with clear and convincing evidence.

C. The Third Prong

S.N.R. argues that the Division failed to make reasonable efforts to provide her with services needed to correct the circumstances that led to the children's removal from her care and their placement in foster care. Again, we disagree.

In his decision, the trial judge found that there was clear and convincing evidence showing that the Division made reasonable efforts toward reunification. The judge reviewed the case plans that S.N.R. and S.R. signed, and discussed the services that were offered to them, which included parenting skills classes, services of an in-home parent-support worker, daycare options, assistance to purchase furniture, substance abuse and psychological evaluations, transportation assistance, visitation, individual therapy and assistance in securing housing and employment.

The judge also reviewed S.N.R.'s and S.R.'s record of compliance with these services and concluded that, "Despite a plethora of services and an extended time frame, as the Division provided years of services prior to the current litigation, the parents continued to be non-compliant with a majority of the services." The judge noted that even after the guardianship litigation had commenced, S.N.R. failed to follow up on a referral for a substance abuse assessment, and did not fully comply with a referral for individual therapy.

As to alternatives to termination, the judge found that the Division had explored the possibility of placing the children with certain relatives, but noted that the Division had determined that these relatives were not appropriate placements for the children. The judge concluded that there was no alternative plan for the children other than termination of parental rights.

S.N.R. argues that the Division failed to provide her with reasonable services aimed at reunification. She contends the Division did not allow her the "few additional weeks" that she needed to complete all services, and failed to provide her with "more hands on services." She also says the Division did nothing to promote permanency in the children's lives. These arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

We are satisfied that there is sufficient credible evidence in the record to support the judge's determination that the Division established the third prong with clear and convincing evidence.

D. The Fourth Prong

S.N.R. argues that, even if the first three prongs of the best interests test have been satisfied, the Division failed to present clear and convincing evidence showing that termination of her parental rights would not do more harm than good. We do not agree.

In his decision, the judge found that although the children had attachments to S.N.R., those attachments are insecure or ambivalent. The judge stated that S.N.R. is not a positive figure in the children's lives and "languishing in foster care to give the parents additional time would cause these children severe and enduring harm."

The judge additionally found that the select home adoption process afforded the children their only chance of finding safe and permanent family homes. The judge stated that, if S.N.R.'s and S.R.'s parental rights are terminated, "the door to" adoption "will be opened" and this would allow the children to be "identified to homes that will adopt."

The record supports the judge's findings. The State's expert, Dr. Elayne Weitz, testified that her psychological tests indicated S.N.R. was suffering from untreated depression. Since S.N.R. became involved with the child protection agencies, she had not made any notable changes that would make her more capable of parenting the children, and her depression impaired her ability to parent.

Dr. Weitz said that S.N.R.'s continued use of drugs impaired her ability to parent. She also believed that S.N.R.'s refusal to treat the depression or drug dependency was significant. In view of S.N.R.'s unstable housing situation, Dr. Weitz said S.N.R. would not be able to capably parent the children in the foreseeable future. She thought it unlikely that S.N.R. would ever be able to provide the children with a safe and stable home.

Dr. Weitz also commented on her evaluation of S.N.R.'s bonds with the children. She stated that, during the evaluation, S.N.R. had been appropriate with the children. Nevertheless, she thought S.N.R.'s bonding attachment with the children was insecure. Dr. Weitz concluded that S.N.R. was not a positive figure in the children's lives, and she should not be allowed more time to resolve her problems, while the children were waiting for permanent placements.

Dr. Weitz said that the children's best interests lie in select home adoptions. She stated that termination of S.N.R.'s parental rights would not cause permanent harm. The children would be upset if S.N.R.'s and S.R.'s parental rights were terminated. However, she said it was possible to find adoptive homes for the children, and the new caretakers could help them deal with any harm that might result from the termination of S.N.R.'s and S.R.'s parental rights.

The Law Guardian's psychological expert, Dr. Denise Williams-Johnson, testified that S.N.R. had a "very good rudimentary understanding" of the children's special needs and of the services they required. Dr. Williams-Johnson also stated that S.N.R. had not adequately addressed the reasons for the children's removal. She was not ready to parent the children. S.N.R. needed to participate in substance abuse and mental health treatments and demonstrate at least nine months of sobriety to show that she could capably parent the children.

Dr. Williams-Johnson further testified concerning her bonding evaluation. She said that, while S.N.R. cared deeply for her children, and the boys were attached to her, the attachment was not consistently positive and the bonds were either ambivalent or insecure.

Dr. Williams-Johnson opined that the children would suffer some harm if S.N.R.'s parental rights were terminated. She stated that S.N.R. had not changed sufficiently to warrant return of the children to her care. The doctor said that the children's best interests were in permanency, as soon as possible, followed by adoption.

Dr. Klein, the psychologist who testified for S.N.R., stated that she is capable of independently parenting and protecting the children if she had a suitable home and followed through on services. Dr. Klein said that the children were strongly bonded to S.N.R. He thought that permanency was important, but said that placing the children in limbo and moving them from placement to placement was inconsistent with permanency.

Here, the trial judge found Dr. Weitz's and Dr. William-Johnson's testimony regarding the bonds of the children with S.N.R. were credible. The judge also found that Dr. Klein's testimony on the best interests of the children was not credible. He noted that Dr. Weitz and Dr. Williams-Johnson had concluded that allowing the children to languish in foster care to give the parents more time to address the issues that led to the children's placement would cause them to sustain "further and enduring harm."

The judge found the Division had established that termination of S.N.R.'s parental rights would not do more harm than good because "the children have insecure attachments to their parents, and while they will likely be harmed by the severance of the parental relationship, the evidence is clear that the risk of harm in reunification with the parents is greater."

S.N.R. argues that the evidence does not support the judge's findings. She maintains that the evidence shows the children have a special bond with her. She says the children want to be returned to her care. She additionally contends that Dr. Klein's testimony supports her view that termination of her parental rights will do more harm than good.

S.N.R. notes that the children do not have any other adult figures in their lives. She says the children's current behaviorial issues will most likely be exacerbated and they will suffer a loss of sibling contact if her parental rights are terminated. She also notes that, at the time of trial, there were no permanent placements available for the children.

We conclude, however, that judge's findings have ample support in the evidence, specifically the testimony of Dr. Weitz and Dr. Williams-Johnson, which the judge found credible. We are therefore convinced that the evidence clearly and convincingly supports the judge's finding that termination of S.N.R.'s parental rights will not do more harm than good.

Affirmed.

 

 

1 The complaint was filed by the Division of Youth and Family Services (Division). However, in June 2012, legislation was enacted reorganizing the Department of Children and Families, and the Division was renamed the Division of Child Protection and Permanency. L. 2012, c, 16, eff. June 29, 2012.

2 It appears that, at some point after her removal, I.R. was placed with her biological father, and the Division's plan did not call for the termination of S.N.R.'s parental rights to I.R.

3 S.R. has not appealed.