DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.L.

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NOT FOR PUBLICATION WITHOUT THE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.

S.L.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Sa.L.,

Minor.

___________________________________

December 18, 2015

Submitted September 28, 2015 Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FL-02-59-13.

Williams Law Group, LLC, attorneys for appellant (Allison C. Williams, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Sa.L. (Noel Christian Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant S.L., the adoptive mother of Sa.L., appeals from a September 11, 2013 judgment awarding kinship legal guardianship (KLG) to the child's resource parents.1 Defendant contends the Division of Child Protection and Permanency (Division)2 failed to prove by clear and convincing evidence either that it made reasonable efforts to reunify the child with her parent or that the KLG placement was in the child's best interest. Defendant also argues the Family Part judge disregarded the "manifest weight" of the defense expert testimony and erroneously credited the Division's expert testimony. Finding no merit in defendant's claims, we affirm.

In July 2011, the Division conducted a Dodd removal3 of S.L.'s teenage daughter,4 after S.L. repeatedly stabbed the child with a screwdriver. Two days after removing defendant's daughter, the Division placed her with the resource parents with whom she has since resided. Three days after removing defendant's daughter, the Division filed a verified complaint and "Order to Show Cause with Temporary Custody and to Appoint a Law Guardian."

The court executed the order to show cause, making defendant's daughter a ward of the court; placed her in the custody, care and supervision of the Division; and ordered defendant to appear the following month and show cause why her daughter should not be continued in the Division's custody. The court also suspended defendant's visitation with her daughter, apparently because a "[n]o [c]ontact" order was entered in criminal proceedings charging defendant with aggravated assault, endangering the welfare of a child, and a weapons offense.

Following the court's filing of the order to show cause, the Division held a pre-placement conference with defendant and her sister, F.L., who had requested to act as a resource placement for her niece. The Division employees explained their goal was reunification, but before reunification could occur, was placement in a safe environment. F.L. agreed to undergo a psychological evaluation. She informed the caseworkers she and her sister had a falling out six years earlier, when F.L. confronted defendant about her methods of disciplining her daughter. F.L. explained that since the falling out, she had only seen her niece approximately once each year, whereas before the falling out she had seen her niece twice a month. The Division scheduled a follow-up meeting.

Meanwhile, defendant's daughter discussed her placement with a Division supervisor and said she had no interest in living with F.L. The child told the supervisor she had not seen her aunt since the falling out. Nonetheless, the Division continued to consider F.L. as a possible placement.

In August 2011, on the return date of the order to show cause, the court continued custody with the Division, suspended defendant's visitation with her daughter pending further order, and ordered both defendant and her daughter undergo psychological evaluation and attend counseling. The court also ordered the Division to "arrange a home study/interstate referral" for F.L., and to evaluate her "as a possible resource for minor."

The following month, during a case management review, the court ordered defendant to attend counseling and her daughter to undergo therapy at Audrey Hepburn Children's House. The court prohibited defendant from visiting her daughter, restrained F.L. from discussing placement or court issues with her niece, and ordered all contact between F.L. and the child to be supervised by the Division.

Following several interim proceedings, the parties appeared for a Title 9 fact-finding hearing in December 2011. Defendant waived her right to a hearing and admitted the psychological harm she caused her daughter in July 2011 constituted abuse or neglect.

Meanwhile, the psychologist who evaluated F.L. issued a report. For several reasons, the psychologist recommended against F.L. being considered as a placement for her niece. The psychologist recommended both that F.L. participate in individual therapy sessions to facilitate a relationship with her niece and that contact between F.L. and her niece remain supervised until F.L. "has demonstrated she is able to appropriately address [her niece's] emotional and physical needs."

In a letter dated June 29, 2012, six months after F.L.'s psychological evaluation, the Division ruled out F.L. as a placement for her niece. The Division based its decision on the psychological evaluation as well as the child's desire not to live with F.L. in New York. F.L. filed an administrative appeal. In December 2012 the Department of Children and Families, Office of Legal Affairs Administrative Hearing Unit upheld the decision.

The Administrative Review Officer acknowledged receiving home study and psychiatric reports concluding F.L. would be a good resource for her niece. The Review Officer noted, however, that the home study report did not reference whether its author was provided with case documentation from New Jersey as part of the assessment of F.L.'s parenting capacity. Based upon the psychological evaluation previously undergone by F.L., as well as the child's desire not to move to New York and live with F.L., the Administrative Review Officer upheld the previous determination finding F.L. "unwilling or unable" to serve as a resource provider. F.L. appealed from the final administrative decision. We have also decided F.L.'s appeal today. N.J. Dep't of Children and Families v. F.L., No. A-2652-12 (December 18, 2015).

During the year following defendant's stipulation that she had abused or neglected her daughter, the Division ruled out other possible placement resources; none appealed these decisions. The Division's goal continued to be reunification and it provided defendant with services, including psychological counseling and therapy.

On June 21, 2012, the court rejected the Division's plan of reunification. The court acknowledged the Division had provided reasonable efforts to finalize its permanent plan, including reunification, and found that the Division had provided such services as "psychological evaluation, individual counseling, parenting classes, anger management classes, medication monitoring and exploration of relatives." However, the court determined the Division's plan of reunification was unacceptable because defendant's daughter "does not want to return to her mother and refuses any contact with her."

Defendant pled guilty to third-degree aggravated assault (causing injury with a deadly weapon). In August 2012, the court sentenced defendant to 270 days in county jail but permitted her to serve the sentence through a home detention program. Two months later, in October 2012, the court approved the Division's plan for KLG with defendant's daughter's resource parents. The court determined it was not safe to reunite defendant and her daughter "in the foreseeable future" in light of the defendant's pattern of physically and emotionally abusing her daughter, which had come to light during therapy sessions. The court also cited the daughter's continuing fear of her mother and desire to have no contact with her. The court decided terminating defendant's parental rights was inappropriate due to her daughter's age, fifteen, and her desire not to be adopted. The court scheduled interim management conferences and a KLG hearing to commence in February, 2013.

The KLG trial was delayed until June 2013. In May the court conducted an in camera interview of defendant's daughter and her law guardian to explore placement with F.L. The daughter made clear that she did not wish to be placed with F.L. or with defendant's cousin in Connecticut, who had also come forward as a possible placement. Defendant's daughter had visited the cousin, and the Division considered the cousin and her family a viable permanent plan for defendant's daughter.

During the KLG trial, the Division presented the testimony of its caseworker, the child's therapist, the resource parents, and an expert. The Division's caseworker recounted the events resulting in the removal of defendant's daughter; the services provided to defendant, her daughter, and F.L.; the course of the Division's reunification plan; and, ultimately, the Division's decision to seek KLG as a permanent plan for the child. The caseworker testified that, though defendant's cousin was a viable placement option, defendant's daughter was insistent that she did not want to move to Connecticut. Honoring her wishes, the Division directed its efforts toward KLG.

Defendant's daughter's therapist testified about their weekly sessions and said defendant's daughter had consistently demonstrated a desire not to return to her mother or have any contact with her. Defendant's daughter was also clear that she did not want to live with F.L. or her mother's cousin. This was because

For [defendant's daughter] her school has been her safety and security as she was enduring years of abuse . . . from her mother. . . . That is the core of her safety. She considers school as her lifeline. So staying in [her school] will be able to foster her sense of security, and then she could flourish from that. It is very important.

The therapist also explained that defendant's daughter "is comfortable in her resource home. And she's able to discuss her issues with them. And she has reached out to them when she needs some help in decision-making, or when she needs some emotional comfort." The therapist considered this important because defendant's abuse had affected her daughter's ability to trust others. The therapist recommended the child remain with her resource parents.

The Division's expert psychologist, Dr. Elayne Weitz, conducted bonding evaluations. She also completed psychological evaluations of defendant and F.L. Dr. Weitz explained: "forming a bond with a new caretaker can be very difficult. . . . [i]t can happen when the next caretaker is warm, and loving, and empathetic, and understanding. And understands the child had a previous bond that they need to recover from the loss from." She found defendant's daughter to be "a child who really never learned how to bond." Consequently, defendant's daughter did not bond when she came to her adoptive home.

Dr. Weitz discussed the effect of physical and emotional abuse of children by their caretaker, explaining these children

[D]o not learn to trust. And, therefore, do not form a secure bond with a primary attachment figure. . . . [T]hey can . . . then become detached in their relationships. They don't know how to develop a sincere relationship with another individual. They don't understand give and take in relationships.

[T]hey're afraid about what the the next person might do to them again. . . . And there's a sense of learned helplessness that goes on. Again, low self-esteem.

Dr. Weitz found defendant's daughter was initially not trusting of anyone, but the more time she spent with her resource parents, the more she began to trust them. Dr. Weitz believed that if defendant's daughter were to remain with them, she would be able to develop attachment there. She warned: "[i]f she leaves there for any reason and is expected then to go somewhere else[,] she's starting all over again. There's no reason for her to trust anyone else at this point." Dr. Weitz recommended that defendant's daughter have a significant role in her permanency plan because it would make her feel as though her voice was heard, giving her "some degree of control" in her life.

Dr. Weitz thought defendant's cousin's home would be safe for defendant's daughter, but was not a "good fit" because the daughter would have to change schools and because of the number of people in the household. Similarly, Dr. Weitz concluded defendant's daughter should not live with F.L. because F.L.'s personality would not be compatible with her niece's desires to be heard and not be treated like a young child. When asked about the potential effect on the child of living with F.L., Dr. Weitz explained that "with an adult who is being judgmental and telling her what she needs to think and feel, to [the niece], that's simply another form of abuse."

The resource parents testified, acknowledged the obligations and responsibilities of kinship legal guardians, and assured the court they were willing to discharge these obligations. Defendant testified on her own behalf. She also presented the testimony of her sister and cousin, a neighbor who once babysat her daughter and had remained very fond of her, and an expert psychologist. Defendant admitted she had been a poor parent, but had tried to teach her daughter the importance of education and responsibility. She also tried to teach her daughter to be an independent, responsible young person. She explained that the Division had been involved with her and her daughter on four occasions and she recounted the events and aftermath of each. Defendant testified about the services she had undergone at the Division's request, and her understanding the services were necessary for reunification with her daughter. Defendant completed therapy and psychiatric counseling, parenting classes, and anger management.

Defendant also started on a regime of medication, which included a mood stabilizer to help her control her obsessive personality disorder and a pill to help her control her anxiety. By the time of trial, she was no longer taking the anxiety medication.

Following her daughter's removal by the Division, defendant suggested placements, including F.L., her brother, and the family of one of her daughter's friends. Defendant also wanted her daughter placed with defendant's cousin in Connecticut. She explained that the cousin and her husband would provide her daughter "with a safe, happy, intellectually stimulated environment. And they'd ensure her a very bright and successful future." Although defendant believed her daughter's opinion about where she should reside should be considered, the final decision should be made by knowledgeable adults. Defendant also testified that as a result of the criminal charges, she pled guilty and was sentenced to three years probation and nine months of "house arrest." The house arrest began on August 3, 2012 and ended October 18, 2012. Defendant reviewed for the court what she told her daughter, and what her daughter told the judge at sentencing.

Defendant felt she had made significant progress in terms of insight into her disorders, her anger, and the reasons she mistreated her daughter. She explained that if she were lucky enough to parent her daughter again, she would respect her daughter, and everything else would follow. If any situation between her and her daughter became confrontational, defendant said she would leave the room. In short, defendant believed she had learned how to control and dissipate her anger.

Defendant next recounted how her daughter had complained about her resource parents during the first three months of her placement. Defendant felt her daughter was isolated in her resource parents' home. Defendant criticized the Division for not doing everything it could to reunite her with her daughter. Rather, according to defendant, the Division had "done everything counter to what's stated in their handbook." Defendant felt the resource family and the Division had restricted her daughter's contact with her extended family. Defendant also was critical of the Division's restrictions on her communications with her daughter following her daughter's removal.

Defendant's neighbor, who had babysat her daughter, testified about defendant's daughter's difficult adjustment to her resource home the first six months after her removal. The witness also testified about several incidents, either related by defendant's daughter or observed by the witness, when one or other of the resource parents behaved irrationally and out of anger.

F.L. and defendant's cousin also testified. F.L. testified about her relationship with her sister and niece, beginning with the adoption and her niece coming to the United States. F.L. expressed concern about her niece's resource parents and was critical of both the Division's handling of her niece's placement and the Division's restriction on the niece's communication with her.

Defendant's cousin testified that she lived with her husband and five children in Connecticut. She explained that if defendant's daughter came to live with her, the daughter would share a lower level bedroom with one of the cousin's daughters. The cousin testified that defendant was actually her mother's first cousin. She had not had any contact with defendant until after defendant's daughter was removed by the Division.

The cousin testified that both she and her husband would love to have defendant's daughter stay with them. Her children would also "love it" if defendant's daughter came to live with them. The cousin recounted her visits with defendant's daughter from the first visit in July 2012 through the last visit in April 2013. The cousin hoped to offer defendant's daughter "a loving, caring, supportive environment," and a meaningful life which would include the cousin's family's day-to-day involvement in the child's schooling, activities, and with her friends.

Defendant's expert, Dr. Susan Herschman, conducted a best interest evaluation of defendant, her daughter, her sister, her cousin, and the resource parents. She concluded defendant's daughter should not be placed in the kinship legal guardianship of her resource parents, but instead, the court should defer decision and require the child to engage in visits with defendant's cousin's family to facilitate a permanent move there. Dr. Herschman based her opinion primarily on what she viewed as the absence of a bonded relationship between the child and her resource parents after twenty months in their care, and a lack of a definitive statement by the child that she wanted to stay there. Additionally, Dr. Herschman did not believe the resource parents could provide the level of love and support the child needed, which both F.L. and defendant's cousin could provide. Dr. Herschman opined defendant's daughter "should not be given a choice regarding having consistently scheduled visits with both defendant's cousin's family and F.L. in order to help her determine if she wants relationships with either of them, as well as, to determine the most optimal placement for her." Only with mandatory visits could defendant's daughter make "an informed choice." Dr. Herschman believed the best placement for the child would be with defendant's cousin. Although Dr. Herschman did not believe defendant's daughter should stay with her resource parents, she was not advocating for immediate removal from their care.

Following the trial, Judge Margaret F. Foti concluded the Division had established by clear and convincing evidence the statutory grounds for KLG with the resource parents. Judge Foti found the Division had proved by clear and convincing evidence defendant suffered from obsessive-compulsive and intermittent explosive disorders, which were "of such a serious nature as to demonstrate that she is unable to perform the regular and expected functions of care and support of [her daughter]." The judge noted both the Division's expert, Dr. Weitz, and defendant's expert, Dr. Herschman, agreed that defendant's daughter should not return to defendant's care at this time.

The judge also found the Division had established through its expert "by clear and convincing evidence that [defendant's] inability to perform [care and support] functions is unlikely to change in the foreseeable future." The basis for this finding was defendant: "lacked[ed] empathy"; had "a preordained agenda about what she expects from the child and is not able to see things from [the child]'s perspective"; and was "unable to step back and allow [the child] to establish a degree of independence".

Judge Foti next determined "[t]he Division has shown by clear and convincing evidence that (a) it exercised reasonable efforts to reunify [defendant's daughter] with her mother and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely." The judge explained defendant "is not yet in a position to parent [her daughter]" despite her efforts to complete different therapies. Further, because of the "severity of the abuse suffered by the child and the child's strong desire not to see her mother," the Division had met its burden. Judge Foti stated: "In this court's view, confirmed by the Division's experts, the therapeutic process dictates when and how reunification can occur with the mother, as well as the manner of contact with family members, notwithstanding the mother's desire to control the process." Noting the Division had facilitated contact between defendant's daughter and defendant's cousin, Judge Foti nonetheless concluded "[t]he Division must defer to [the daughter's] mental health professionals. So too, must this court." The judge considered adoption unlikely, given defendant's daughter's age and her desire not to be adopted.

Lastly, the judge found "[t]he Division has shown by clear and convincing evidence that awarding kinship legal guardianship to [the resource parents] is in [defendant's daughter's] best interests." Despite defendant's allegations, the judge determined "[t]here is no evidence that the resource parents have discouraged [defendant's daughter's] academic or athletic endeavors or that they will do so in the future"; instead, the daughter "is encouraged to voice her opinion and can develop as a student, a scholar, and an athlete."

The judge gave little or no weight to Dr. Herschman's opinion defendant's daughter had rejected placement with defendant's cousin without sufficient information. Pointing to the daughter's concern that she did not want to live in an environment that would overwhelm her, the judge found the daughter had formed her opinion on sufficient information from her visits with defendant's cousin.

The judge found "[defendant's daughter] deserves permanency[,]" which would be achieved with the resource parents, with whom she had resided for two years. The judge did, however, provide for the child's visitation with her mother's sister and cousin.

Defendant appeals from the September 11, 2013 judgment awarding the resource parents KLG.

Our review of a Family Part judgment is limited. N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 432 (App. Div.) certif. denied, 205 N.J. 14 (2010). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 483, 484 (1974)). "Reversal is required in those circumstances when the trial court's findings were 'so wide of the mark that a mistake must have been made.'" T.G., supra, 414 N.J. Super. at 433 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

Appellate courts are obligated "to accord deference to the trial judge's credibility determinations and the judge's 'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). "[W]hen a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, 'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" T.G., supra, 414 N.J. Super. at 433 (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)).

"However, '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.'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). "Moreover, by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [Part] factfinding.'" R.G., supra, 217 N.J. at 553 (quoting Cesare, supra, 154 N.J. at 412-13) (alteration in original).

When evaluating the proofs in a KLG action, the trial court must find by clear and convincing evidence that

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

(3) in cases in which the [D]ivision is involved with the child . . . (a) the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and

(4) awarding kinship legal guardianship is in the child's best interests.

[N.J.S.A. 3B:12A-6(d).]

On appeal, defendant argues the following points

POINT [I]

THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO REUNIFY THE CHILD WITH HER PARENT.

POINT [II]

THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THIS KINSHIP LEGAL GUARDIANSHIP PLACEMENT WAS IN THE BEST INTERESTS OF THIS CHILD.

POINT [III]

THE TRIAL COURT ERRED BY DISREGARDING THE MANIFEST WEIGHT OF THE EVIDENCE ON THE SIDE OF THE DEFENSE EXPERT, IN FAVOR OF THE DIVISION'S EXPERT WHOSE TESTIMONY PRESENTED AS CONTRIVED AND ERRONEOUS.

We reject defendant's arguments and affirm, substantially for the reasons set forth by Judge Foti in her August 29, 2013 written opinion. Judge Foti's findings command our deference because they were made after she had the opportunity to see, hear, and assess the witnesses, and the findings are based on substantial and credible evidence. R.G., supra, 217 N.J. at 552; N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare, supra, 154 N.J. at 412-13. We add only these brief comments.

As Judge Foti found, after enduring years of abuse by defendant, resulting in considerable emotional damage, defendant's daughter was entitled to permanent placement that would best facilitate her continuing emotional recovery. Neither expert found defendant capable of providing the necessary care and support. The court was required to consider the wishes of the child, N.J.S.A. 3B:12A-6(a)(7), who consistently maintained she did not want to live with F.L. or her mother's cousin. The Division's expert, whom Judge Foti found credible, confirmed defendant's daughter's school had been her safe haven and lifeline, so staying in her school would foster a much-needed sense of security. Obviously, defendant's daughter could not remain in her school if she moved to New York or Connecticut.

Lastly, though defendant's daughter did not initially adjust well to her resource parents, and though she never bonded with them, she eventually saw them as a source of security and stability. In the interview with her law guardian and the judge, she said she wanted to remain with them.

In view of Judge Foti's credibility determinations, defendant's arguments concerning the Division's failure to prove its case by clear and convincing evidence are entirely unpersuasive. Defendant's arguments that the judge erred by giving greater weight to the Division's expert is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The child does not have an adoptive father.

2

The Division of Child Protection and Permanency was formerly known as the Division of Youth and Family Services. The name change became effective June 29, 2012. L. 2012, c. 16.

3

A "Dodd removal" refers to the emergency removal of a child without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

4 Defendant's daughter has since reached the age of majority. We have not been informed as to whether or not she is enrolled in a full-time secondary education program. Consequently, we cannot determine if the KLG has terminated. N.J.S.A. 3B:12A-4(a)(6).