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

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NOT FOR PUBLICATION WITHOUT THE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.C.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.V., JR. and J.V.,

Minors.

__________________________________

September 4, 2015

Submitted April 28, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-54-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowtiz, Assistant Attorney General, of counsel; Jaime E. Stofa, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant M.C. appeals from the Family Part order that terminated her parental rights to her children, J.V. (Jasmine), age five, and A.V., Jr. (Alvin, Jr.), age three.1 Defendant contends that the New Jersey Division of Child Protection and Permanency (the Division) failed to satisfy the four prongs of the best interest of the child test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. For the reasons that follow, we affirm.

Before discussing the issues raised by the parent on appeal, we briefly review the well-recognized criteria for terminating parental rights and our role on appeal. It is well settled that "parents 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 N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). Nonetheless, in a guardianship proceeding, we are required to balance the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007).

To this end, for the Division to terminate parental rights and obtain guardianship of the child, it must satisfy the following four prong test

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

These factors should be considered together to provide a picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 166-67; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." 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) (citation and internal quotation marks omitted). The Division's burden of proof at trial is to establish its case by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 511 (1994).

Our review affords deference to the Family Part judge. First, we "defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." I.S., supra, 202 N.J. at 185. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Second, we give deference to the judge's credibility determinations. M.M., supra, 189 N.J. at 279 (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Judges who hear the case and see the witnesses are "better positioned to evaluate the witnesses' credibility, qualifications, and weight to be accorded [their] testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Third, there is special deference given to the Family Part's fact-finding based on its expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 413.

Nevertheless, "[w]here the issue to be decided is an 'alleged error in the Family Part judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The Family Part judge's legal conclusions and application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

We discern the following facts from the record. The Division first became involved with this family in December 2010, when defendant reported that upon her return to pick up Jasmine from Alvin, Sr.'s2 house following a birthday celebration, Alvin, Sr. physically assaulted her while she was holding Jasmine. The Division did not substantiate abuse, and determined that defendant's allegations were unfounded.

In August 2011 the Division received a second referral when a social worker at Saint Joseph's Hospital suspected child neglect of then fifteen-month-old Jasmine based on the doctor's concerns about the way defendant treated Jasmine during the visit. The doctor indicated that defendant was handling Jasmine "extremely rough" during the visit. The doctor also reported that defendant left Jasmine alone in the room on the exam table without any adult supervision for a few minutes before he entered the room to treat Jasmine. The Division's investigation did not substantiate abuse and determined that the allegations were unfounded. It closed the case in February 2012.

The Division received a third referral involving this family in May 2012, based on allegations that defendant smoked marijuana and sold drugs out of her home. During its investigation, the Division conducted a substance abuse evaluation of defendant and she tested positive for marijuana use. Based on the positive drug test and other allegations, the Division recommended that defendant: attend a Mentally Ill Chemically Addicted ("MICA") substance abuse program; have a psychiatric evaluation by Dr. Sostre; and enter into a safety protection plan, which required supervised interactions between defendant and the children at all times. Upon the completion of a psychiatric evaluation, Dr. Sostre concluded that defendant suffered from mental health and substance abuse issues, and diagnosed her with post-traumatic stress disorder, mood disorder, bipolar disorder, cannabis abuse, borderline personality disorder, and postpartum. Dr. Sostre recommended that she follow up with therapy and complete the MICA program.

Although defendant consented to the safety protection plan, she failed to comply. She denied the Division's agent entry into her home, preventing confirmation of the children's safety. Later, the Division learned the children were with their paternal grandmother. Due to defendant's non-compliance, and concerns for her mental health and substance abuse, the Division removed the children from defendant's custody on June 23, 2012. A few days later, the family court entered an order awarding legal and physical custody of the children to the Division.3

Following the children's removal, the Division's initial goal was to reunite defendant with her children. To further this goal, she participated in the following additional services recommended by the Division: MICA program for substance abuse; Center for Evaluation and Counseling (CEC) for a psychological evaluation; the Challenge program for drug and mental treatment; Project in Assistance from Transition of Homelessness (PATH) for mental health and housing issues; Care Plus for supervised visits, Children's Aid to Families Services (CAFS) for individual therapy and anger management; and Epic program for parenting classes. These services, however, proved to be unsuccessful.

Defendant was discharged from the MICA for non-compliance after failing to attend for thirteen days. Similarly, she was discharged from the CAFS program due to non-compliance. Although she successfully completed the Challenge program, defendant failed to reengage as requested. Defendant also failed to follow up with the PATH program, even though a caseworker transported her to the first appointment.

On December 7, 2012, upon the completion of the psychological evaluations, the CEC report stated

[Defendant] is an immature, rebellious, impulsive parent with a history of marijuana addiction and poor personal and interpersonal judgment. [Defendant] has been in a relationship with her children's father, [Alvin, Sr.], who has a history of criminal charges for sexual assault against a minor, drug-related crimes, and domestic violence towards her. Despite this history, [defendant] does not view this relationship as potentially problematic or as presenting a risk to her or her children. [Defendant] has a history of anger management difficulties. She also has a childhood history of neglect and child abuse including sexual abuse. [Defendant] has not addressed her traumatic childhood history in psychotherapy.

Further, the CEC counselor recommended that defendant's visitation continue to be supervised and that she continue her other services.

Defendant did successfully complete parenting classes with the EPIC program. She attended visits consistently with the children from October 2012 until July 2013 through the Care Plus program. For approximately six months thereafter, defendant attended supervised visits at the O'Neil Center and the Division's office. However, in February 2014, defendant's visits became more sporadic. After failing to attend three consecutive visits, defendant was terminated from the visitation program.

In May 2013, after nearly a year of services, defendant tested positive for Phencyclidine (PCP). Defendant claimed that it was in her system because Alvin, Sr. was smoking PCP near her. Given the level of the substance found in her system, the Division concluded that her explanation was implausible.

Following a permanency hearing on June 13, 2013, the trial court found that termination of parental rights followed by adoption was an appropriate course of action because "neither parent demonstrated the ability to provide a safe and stable environment" for the children. Despite the change in goal, the Division continued to offer defendant services throughout 2013 and the beginning of 2014. Yet, due to defendant's failure to make progress with the services, the Division filed this guardianship action.

Judge Margaret M. Foti held the guardianship trial on August 27 and September 3, 2014. At trial, the Division presented two fact witnesses, the former and current caseworkers Yocasta Riccardi and Kimberly Megnin, respectively. The Division also called Dr. Robert J. Miller II, Ph.D., as an expert in psychology, parental fitness, and bonding. Defendant did not present any testimonial or documentary evidence.

Riccardi testified that during the time she oversaw defendant's case she witnessed defendant's angry outburst in the Division's office, and that due to defendant's involuntary discharge from multiple programs, she did not believe defendant was making sufficient progress in treatment.

Megnin testified that during her time as the caseworker, defendant did not have stable housing and was not attending therapy consistently, which led to her being terminated in March 2014. She also testified that defendant never attended any of the early intervention meetings to address the children's special needs, despite being reminded of the appointments. Megnin further testified that due to defendant's lack of cooperation, the court issued an order authorizing the Division to engage in special needs treatment for the children without defendant's consent.

Megnin also testified that defendant indicated she had no relatives who could care for the children, and therefore, the Division assessed all potential paternal relatives. The paternal grandparents were ruled out as potential caregivers due to their advanced age and illness. A paternal uncle was assessed and ruled out due to his criminal history, including being guilty of child abuse and criminal sexual misconduct. In addition, a paternal relative was ruled out after she indicated that she was not able or willing to care for the children and another paternal relative was only willing to take one child due to his lack of accommodations.

Dr. Miller testified that he conducteda series of three psychological evaluations of defendant, and bonding evaluations of the children with defendant and the foster parents. Defendant's psychological testing revealed severe parenting deficits rooted in her childhood trauma, and Dr. Miller noted that is not "uncommon for trauma patients" like defendant to demonstrate a pattern to "jump ship" by continuously dropping out of programs and re-engaging. Dr. Miller believed this pattern meant defendant was "unable to take that step in readiness for change" which rendered her unable to parent her children. Dr. Miller opined that defendant is unwilling or unable to address her psychiatric and substance abuse problem, and thus, "remains a high risk parent." Dr. Miller likewise concluded that defendant's failure to remediate her issues was evident in her parenting, as "she [was] inconsistent with visitation, she [did not] participate in treatment, she [did not] recognize the special needs of [her children,]" and "demonstrated her inability to provide a safe and stable environment . . . for her children."

As for the bonding evaluations, Dr. Miller testified that Alvin, Jr. did not appear to be attached to defendant, while Jasmine appeared insecurely attached to defendant; however, both children demonstrated developing "secure attachments with the foster parents." Dr. Miller stated that the children would not suffer serious and enduring harm if permanently removed from defendant; however, separating them from the foster parents would be harmful. Dr. Miller opined that defendant lacked "a basic parental commitment to development and helping" Jasmine and Alvin, Jr., and stated that the "children would be left in a sea of loneliness if they were placed in [defendant's] custody [because s]he would not be able to recognize their feelings or their special needs." Consequently, Dr. Miller concluded that the children should remain with their foster parents and that the Division should continue to seek termination of parental rights so the children could be adopted.

On October 15, 2014, Judge Foti issued a written opinion finding that the Division had proven each prong of the best interests of the child analysis by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a) and, as such, terminated defendant's parental rights to Jasmine and Alvin, Jr.

Judge Foti accepted Dr. Miller's determination that defendant's mental health and substance abuse issues are significant and deeply rooted in her own childhood trauma, and that she was not able to meet the children's needs. The judge recognized that defendant admitted using marijuana on a daily basis to remain calm, and exposed her children to substance abuse and domestic violence. Thus, the judge found that defendant had endangered the children's safety, health, and development due to her continual substance abuse, refusal to comply with services recommended by the Division, and permitting Jasmine and Alvin, Jr. "to be supervised by their father, a man convicted of serious crimes (and not permitted to supervise children), who himself, had significant substance abuse issues."

Further, Judge Foti determined that defendant was unwilling or unable to remedy the harm that prompted Jasmine's and Alvin, Jr.'s removal. Noting that when addressing prong two, the court should look for "indications of parental dereliction and irresponsibility," the judge cited Dr. Miller's credible testimony that defendant's "mental health problems have remained completely unaddressed because she had failed to successfully follow through on any recommended services over the past two years." The judge accepted Dr. Miller's assessment that defendant's pattern of making progress in programs and then dropping out demonstrates that she was not ready to make the commitment to the difficult work that must occur to be reunified with her children.

Based on testimonial evidence, Judge Foti found that defendant "has not successfully addressed her substance abuse and mental health issues, has not found stable housing, has not consistently visited with the children, and lacks an understanding of the children's special needs[.]" Therefore, the judge determined that defendant was unable to meet the needs of her children, had no real plan to care for them, and was ill-equipped to follow through on the services the children require. Further, the judge noted the children's need for permanency and the continued harm that delay would cause the children since they have been in foster care since June 2012.

Additionally, Judge Foti found that the Division provided numerous services to defendant that were targeted to help her correct the circumstances that led to the children's removal. Specifically, the judge noted that the Division arranged for visitation, offered transportation, provided psychological and psychiatric evaluations, offered individual therapy, assisted in finding housing, and offered substance abuse programs. Despite defendant's failure to comply with the services, the judge found that the Division continued to work with defendant by referring her to different programs. Accepting Megnin's testimony, the judge also determined that the Division had appropriately explored alternatives to termination of rights, but there were no alternatives.

Finally, Judge Foti found that the Division satisfied the fourth and final prong. The judge noted that she "ha[d] empathy with [defendant] who ha[d] suffered abuse as a child[;]" however, she determined that termination of defendant's parental rights would not do more harm than good, due in large part to defendant's conduct throughout the two year span of this litigation. In so finding, the judge credited Dr. Miller's "clear, credible, unequivocal and uncontroverted" testimony that "the children [were] developing a secure attachment with the foster parents and will not experience harm as the result of separation from [defendant.]" The judge entered the order terminating defendant's parental rights to Jasmine and Alvin, Jr., and this appeal resulted.

On appeal, defendant argues that there is insufficient evidence in the record for the trial court to conclude the four prongs of the best interest of the child test were satisfied. The Division and the Law Guardian urge us to affirm. We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Foti in her comprehensive written opinion. We add only the following.

Defendant argues that the Division failed to prove the first prong because she never physically harmed her children and has shown that she can abstain from drugs for a sustained period of time. Our courts have recognized that when considering the first prong, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. The Division "does not have to wait until a child is actually irreparably impaired . . . ." F.M., supra, 211 N.J. at 449 (internal quotation marks omitted) and, therefore, "[t]he absence of physical abuse or neglect is not conclusive[.]" New Jersey Div. of Youth and Family Services v. A.W., 103 N.J. 591, 605 (1986).

Here, defendant's vagrant lifestyle, continued use of marijuana and inability to address her mental health and substance abuse clearly and convincingly demonstrated the children's safety, health and development had been and would likely continue to be endangered. N.J.S.A. 30:4C-15.1(a)(1).

Defendant argues that the Division failed to prove the second prong because, despite being unsuccessfully discharged from nearly all of the services to which she was referred, she participated in numerous services and successfully completed one rehabilitation program. She contends that the trial judge failed to consider her progress.

The second standard "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay' in 'permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In re Guardianship ofJ.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).

Here, defendant has repeatedly attempted to engage in services, but failed to follow through and, at best, made minimum progress. There is no question that during the pendency of the litigation, she never was able to establish mental, financial, or housing stability, and the prospect of doing so in the near future is unlikely.

Defendant's challenge to the third prong centers on the Division's refusal to provide her housing assistance. N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "diligent efforts to provide services to help the parent correct the circumstances that led to the child s placement outside the home," and that the court "consider[] alternatives to termination of parental rights." Provision of services under the third prong "contemplates efforts that focus on reunification . . . ." K.H.O., supra, 161 N.J. at 354. The reasonableness of the Division's efforts "is not measured by [the parent's] success[,]" D.M.H., supra, 161 N.J. at 393, although a court may consider "whether a parent actively participated in the reunification effort." New Jersey Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012).

Defendant contends that housing assistance was the primary service needed to correct the circumstances that led to the children's removal from her custody and the Division failed to satisfy prong three because it refused to offer such assistance. Based on the record, defendant's contention is without merit.

The Division referred defendant to the PATH program which specifically address housing issues; however, she failed to follow up with the program, even though a caseworker transported her to the first appointment. The record is replete with evidence of the Division's efforts to provide defendant with the appropriate means to safely parent her children. Further, the Division considered alternatives to termination, as multiple paternal relatives were assessed and ruled out.

Lastly, defendant argues that termination was not appropriate simply because the children may be "better off" with the foster parents. She contends the judge only considered the harm opined by Dr. Miller, but did not consider the bond she was building with the children.

The fourth prong of the best interest analysis mandates a determination as to "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 permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "[M]erely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough." In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999) (citing A.W., supra, 103 N.J. at 603). Satisfaction of this prong "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25) (internal quotation marks omitted).

Moreover, the Division must demonstrate by clear and convincing evidence that "separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." N.J.S.A. 30:4C-15.1(a). This may be proven by "testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with the foster parent." J.C., supra, 129 N.J. at 19.

Judge Foti relied upon the uncontroverted testimony and reports of Dr. Miller. In his report, the doctor specifically stated that separating the children from the foster parents "would be catastrophic[,]" and that they "would not be harmed" if their relationship with their mother was severed. Our careful review of the record causes us to conclude that the Division met its burden of proof regarding the forth prong of the best interest test.

Affirmed.

1 For privacy reasons, we have fictionalized the names of the parties involved.

2 Alvin, Sr. is the children's father, who was a convicted sex offender and not permitted to have unsupervised contact with children. On the first day of the guardianship trial, he surrendered his parental rights to the children.

3 To date, the children have been in foster care.