DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.W.

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NOT FOR PUBLICATION WITHOUT THE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.

F.W.,

Defendant-Appellant,

and

A.W., F.D., C.W. and M.G.,

Defendants.

________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

I.A.N.P., K.K.P., Ai.R.W., K.I.A.W.,

Ah.R.W. and H.W.,

Minors.

________________________________________

December 17, 2015

Argued November 17, 2015 Decided

Before Judges Yannotti, St. John and Vernoia.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-126-14.

Eric R. Foley, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Foley, on the briefs).

Thomas Ercolano, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay Wight, Deputy Attorney General, on the brief).

Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for minors I.A.N.P., K.K.P., and Ai.R.W. (Joseph E. Krakora, Public Defender, Law Guardian; Ms. Seidman, on the brief).

Danielle Ruiz, Designated Counsel, argued the cause for minors K.I.A.W. and Ah.R.W. (Joseph E. Krakora, Public Defender, Law Guardian; Ms. Ruiz, on the brief).

Phyllis G. Warren, Designated Counsel, argued the cause for minor H.W. (Joseph E. Krakora, Public Defender, Law Guardian; Ms. Warren, on the brief).

PER CURIAM

F.W. appeals from an order entered by the Family Part terminating her parental rights to six minor children, and awarding guardianship of the children to the Division of Child Protection and Permanency (the Division).1 For the reasons that follow, we affirm.

I.

We briefly summarize the salient facts. F.W. is the mother of seven children: F.S.W., I.A.N.P., K.K.P., Ai.R.W., K.I.A.W., Ah.R.W. and H.W. A.W. is the father of F.S.W. and another one of F.W.'s children. In July 2014, A.W. completed an identified surrender of his parental rights to these two children. F.P. is the father of two of F.W.'s children, and C.W. is alleged to be the father of two others. The court entered default against F.P. and C.W., and thereafter their parental rights to their children were terminated. M.G. is the father of one of the children. His parental rights also were terminated. The fathers are not participating in this appeal.

The Division first became involved with F.W. in January 2004 due to reported concerns about the health of her children. At the time, F.W. had three children: F.S.W., I.A.N.P. and K.K.P. The Division found that the allegations of neglect were unfounded, but kept the case open for supervision. In March 2005, the Division received another report, indicating that the conditions of F.W.'s home were poor. The Division determined that these concerns were not substantiated, and again left the case open for supervision. During the next two years, the Division continued to monitor F.W. and her children, but reported no concerns.

In December 2007, the Division received a report concerning the conditions of F.W.'s residence. At this time, F.W. had two additional children, Ai.R.W. and K.I.A.W. F.W.'s children were then two, three, four, five and eight years old. The Division investigated the report and, during the course of its investigation, learned that the older children were not enrolled in school.

F.W. admitted that the children's clothes were not clean. She indicated that she did not like to do laundry. F.W. also could not recall the last time the children had been taken to see a doctor. The Division's investigator noted that the home was very dirty, and the children appeared to lack adequate clothing. The investigator also noted that F.W.'s breath smelled of alcohol.

Based on its investigation, the Division found that the allegations of neglect were substantiated. The Division arranged to have a homemaker placed in F.W.'s residence, and F.W. was given two weeks in which to address the conditions of the home, to enroll the older children in school, and to enter a substance abuse program. A week later, the Division's caseworker found that the conditions in the home had not improved.

In January 2008, the Division removed four of the children from F.W.'s care, and the Family Part granted the Division's application for custody, care and supervision of these children. F.S.W. was residing with her paternal grandmother. The four children were placed in two separate foster homes, and F.W. was referred for services, which included psychotherapy, parenting classes and random urine screens. She was not, however, compliant with these services.

In December 2008, F.W. had another child, Ah.R.W. At this time, F.W. was residing with her mother. The Division agreed that Ah.R.W. could remain with F.W., provided F.W. complied with her substance abuse program. In February 2009, the Division learned that F.W. had tested positive for alcohol. The Division thereupon removed Ah.R.W. from F.W.'s care.

The Division referred F.W. for another substance abuse evaluation. In July 2009, F.W. was found to be compliant with that program, and F.S.W. and K.I.A.W. were returned to F.W.'s care. Several months later, Ai.R.W. and Ah.R.W. were returned to F.W., while I.A.N.P. and K.K.P. remained in foster care. Thereafter, the Division received reports that the children in F.W.'s care were wearing dirty uniforms to school, coming to school hungry, and absent from school on numerous days. The Division referred F.W. to Family Preservation Services.

In August 2011, September 2011, and October 2011, the Division investigated reports that the children were abused or neglected. The Division found these reports to be unfounded, but learned that in August 2011, F.W. had given birth to another child, H.W. F.W. said she intended to conceal the baby from the Division for as long as possible. In October 2011, the Division removed the children from F.W.'s care for a second time.

The Division sent F.W. for another substance abuse evaluation, which resulted in a referral to Wellness House. By December 2012, F.W.'s compliance with that program was sporadic. The Division informed F.W. she must become fully compliant or it would seek to terminate her parental rights. The family was referred to Ruth's Unity House for therapeutic visitation.

In January 2013, Wellness House reported that F.W. had only attended thirty-two out of fifty-seven therapy sessions. In March 2013, F.W. was referred to Sunrise House for services. In April 2013, F.W. appeared in court and tested positive for marijuana. F.W. and M.G. reported to the court that they did not have independent housing. F.W. completed an in-patient program at Sunrise House, and she was referred to another program for outpatient treatment.

The Division planned to place H.W. with M.G., but M.G. tested positive for marijuana in June and July 2013. The Division's permanency plan was changed to termination of parental rights, followed by adoption. Thereafter, the Division filed its complaint seeking guardianship of the seven children, but continued to provide the family with therapeutic visitation. Thereafter, F.W. surrendered her parental rights to F.S.W. to the child's then current caregiver.

Trial on the Division's guardianship complaint began on October 31, 2014, seeking termination of F.W.'s parental rights to I.A.N.P., K.K.P., Ai.R.W., K.I.A.W., Ah.R.W. and H.W. The Division presented testimony from Dr. Elayne I. Weitz; its caseworker, Shonna Simon; and a supervisor, Olga Fuentes. Defendants and the Law Guardians for the children did not present any witnesses.

The trial judge issued an oral decision on November 3, 2014, finding that the Division had established by clear and convincing evidence all four prongs of the statutory test for termination of parental rights in N.J.S.A. 30:4C-15.1a as to the six children. Under the statute, the Division must show that

(1) [t]he child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) [t]he 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) [t]he 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) [t]ermination of parental rights will not do more harm than good.

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

The judge entered an order dated November 3, 2014, terminating F.W.'s parental rights to the six children. F.W.'s appeal followed.

On appeal, F.W. does not challenge the trial court's finding on prong one of the statutory best-interests-of-the-child test, but argues that the Division failed to establish the other three prongs of the test. F.W. thus argues that the order terminating parental rights should be reversed as to all of the children.

The Law Guardian for the three girls, I.A.N.P., K.K.P., and Ai.R.W., challenges the court's findings on the second and third prongs of the test. The Law Guardian argues that the order terminating F.W.'s parental rights to these three children should be reversed.

In addition, the Law Guardian for K.I.A.W. and Ah.R.W. argues that the record supports the court's findings as to these children, and the order terminating F.W.'s parental rights to them should be affirmed. Furthermore, the Law Guardian for H.W. argues that the order terminating F.W.'s parental rights to this child should be affirmed.

II.

The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Factual findings of the Family Part "are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we give no "special deference" to the court's "interpretation of the law." Ibid. (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).

The Division may initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the four prongs enumerated in N.J.S.A. 30:4C-15.1a are established by clear and convincing evidence. "The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (citation omitted).

A. Prong One.

As noted, the first prong of the best-interests-of-the-child standard requires the Division to establish that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1a(1). "[T]he Division must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Dept. of Children & Families v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at 352. The focus is not on any single or isolated 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 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986)).

As we noted previously, F.W. and the Law Guardians for any of the children do not argue that the evidence was insufficient to establish this part of the statutory test. We note that the evidence clearly and convincingly showed that the children's health and development had been harmed by their relationship with F.W., as indicated by her long history with the Division, substance abuse, environmental neglect, failure to provide stable housing, failure to enroll and ensure that the older children attend school, and other parenting deficiencies that led to removal of the children from her care in 2008 and in 2011. The trial judge correctly found that the children have suffered "tremendously" from their relationship with F.W.

B. Prong Two.

This part of the best interests standard requires the Division to establish that "[t]he 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." N.J.S.A. 30:4C-15.1a(2). The key issue under this part of the test is "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." A.W., supra, 103 N.J. at 607.

F.W. argues that the Division essentially acknowledged that she had complied with all of the Division's services, with the exception of establishing stable housing and securing employment. F.W. contends the trial court failed to reconcile the Division's concession with the court's determination that she had not been able to change and improve her ability to care for the children. The Law Guardian for I.A.N.P, K.K.P., and Ai.R.W. also argues that the Division failed to establish prong two of the test as to these three children.

We are convinced, however, that the trial court properly found that evidence clearly and convincingly established that F.W. is unwilling or unable to eliminate the harm she posed to all six of the children. The record does not support F.W.'s contention that the judge based his decision on this prong solely on her lack of stable housing and employment. The judge's decision that F.W. was unwilling and unable to eliminate the harm to the children was based on the full record of her involvement with the Division, her failure to fully avail herself of the services provided to her, as well as the expert testimony presented at trial.

In his decision, the trial judge noted that F.W. had been raised in an unstable home where she had minimal structure. F.W. continued to have children and repeated the mistakes she made earlier in her own life. The judge found that F.W. had never substantially addressed the reasons the children had been removed from her care, even though the Division had provided her with an array of services that were intended to address the reasons for the children's removal.

Moreover, Dr. Weitz prepared an extensive report based on her review of the relevant records, her psychological evaluation of F.W., and her bonding evaluations. Dr. Weitz testified that F.W.'s parenting deficiencies were chronic and enduring. She noted that F.W. had not provided the children with a safe and stable home and there was no indication she would be able to do so in the near future. The judge found Dr. Weitz's testimony to be credible.

The record thus supports the trial judge's finding that F.W. was unwilling or unable to eliminate the harm to the children, and a delay in permanent placements would cause further harm.

The Law Guardian for I.A.N.P., K.K.P., and Ai.R.W. argues, however, that the judge erred by failing to assess separately F.W.'s ability to parent these three girls. The Law Guardian for these children notes that F.W. had surrendered her parental rights to F.S.W., H.W. had permanency after placement with his grandmother, and K.I.A.W. and Ah.R.W. had "presumably" found permanency in their placements. The Law Guardian maintains that the judge should have considered whether F.W. could safely and permanently parent the three girls, rather than all six of the children involved in this case.

We are not persuaded by this argument. Here, the trial judge determined that F.W. was not capable of managing the children, and despite the services provided, there was no indication she was "going to change." There is no evidence showing that F.W. would be capable of providing a safe and stable home for three rather than six children. We therefore reject the Law Guardian's contention that the court erred by failing to consider whether F.W. could capably parent I.A.N.P, K.K.P., and Ai.R.W., rather than all six of the children.

C. Prong Three.

The third prong of the best interests standard requires the Division to establish that it made reasonable efforts to help the parent correct the circumstances that led to the children's removal from the parent's care, and considered alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1a(3). "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success. These efforts must be assessed against the standard of adequacy in light of all the circumstances in a given case." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

Here, the trial judge determined that the Division's efforts toward reunification were reasonable. The judge did not detail the factual basis for that finding, but the record clearly and convincingly supports the judge's determination. As we have explained, the record shows that the Division provided F.W. and her children with numerous services over a ten-year period.

Those services included, but were not limited to: assistance in identifying the fathers of some of the children; psychological evaluations; substance abuse evaluations and referrals for services; individual counseling; parenting skills training; family preservation services; homemaker aide services; family counseling; assistance with Medicaid; visitation; sibling visits; counseling for the children; transportation; and periodic substance abuse tests. As noted, F.W. failed to fully avail herself of these services.

Based on this evidence, the judge properly determined that F.W. did not substantially change in a manner that would permit her to capably parent the children and provide them with the permanency they require. Moreover, the record shows that the Division considered alternatives to termination of parental rights.

F.W. argues that the Division failed to provide her with appropriate services to address her lack of stable housing and unemployment. She contends the Division did not advocate on her behalf with regard to any housing program, or assist her with a security deposit. She further argues that the Division should have assisted her in finding employment. These contentions are without merit.

The services that the Division provided were intended to address a range of problems, many of which affected F.W.'s ability to secure stable housing and employment. Furthermore, as the Division points out, F.W. had an obligation to actively participate in efforts toward reunification. F.W. failed to take steps to secure adequate housing, other than having her name placed on a list for public housing. She did not inform the Division that she did not qualify for housing assistance.

Moreover, even if the Division had been able to find suitable housing for F.W. and the children, there is no evidence showing that she would have been able to maintain such housing financially. F.W. worked for a time in a retail store, but left that job. Thereafter, F.W. did not seek a permanent job, and relied instead upon the benefits she had been receiving.

We are therefore convinced that the record supports the trial judge's finding that the Division established prong three with clear and convincing evidence.

D. Prong Four.

The fourth prong of the best-interests-of-the-child standard requires the Division to show that termination of her parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1a(4). Termination of parental rights poses a risk to children due to the severing of the relationship with their natural parents, but it is based "on the paramount need the children have for permanent and defined parent-child relationships." K.H.O., supra, 161 N.J. at 355 (quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)) (internal quotation marks omitted).

Thus, "the fourth prong of the best interests standard [does not] require a showing that no harm will befall the child as a result of severing of biological ties." Ibid. The court must consider and balance whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the" alternatives. Ibid. In cases involving a child in foster care, the court must consider the harm that may result "from the permanent disruption of" the foster-care relationships. Ibid.

Here, there is sufficient credible evidence in the record to support the trial judge's finding that the Division established prong four of the best interests standard as to all of the children. Dr. Weitz noted that F.W. has a lengthy history of selling drugs, using alcohol, gambling and prostitution. She engaged in some of this conduct while the children were in her care. Her relationships with men were self-serving. Dr. Weitz concluded that F.W.'s insight and judgment were poor. She lacked the skills necessary to parent the children and provide them with a safe and stable home.

Dr. Weitz stated that the children did not trust that F.W. would provide them with a safe and stable home. The doctor testified that there is no indication F.W. would be able to do so "in the near future." The doctor stated, "It's not fair for children to wait for their mother to do that when it is clear that is not going to happen." Dr. Weitz's testimony was not rebutted.

1. H.W.

The evidence clearly and convincingly established that termination of F.W.'s parental rights to H.W. would not do more harm than good. This child had been removed from F.W.'s care shortly after she was born. Dr. Weitz testified that while the children might have a bond with F.W., it was "an insecure and anxious bond." Dr. Weitz stated that H.W. perceived her resource caretaker to be her parent and she was bonded to her. Dr. Weitz opined that termination of H.W.'s relationship with F.W. would not do any harm, and loss of the bond with the resource parent would cause her harm that F.W. could not mitigate.

2. K.I.A.W. and Ah.R.W.

The record also clearly and convincingly established that termination of F.W.'s parental rights to K.I.A.W. and Ah.R.W. would not do more harm than good. Dr. Weitz testified that, although K.I.A.W. and Ah.R.W. had bonds with their mother, severing those bonds would not do more harm than good because the bonds with F.W. were not healthy bonds. The doctor explained that these children are not accustomed to living with F.W.

The doctor's observations of F.W.'s interaction with the children indicated that F.W. could be "mean and emotionally hurtful to them." The doctor explained that, when that behavior is "paired with intermittent displays of affection it leaves the children feeling emotionally vulnerable and fragile." She opined that K.I.A.W. and Ah.R.W. eventually would be able to adapt to the termination of F.W.'s parental rights.

The evidence also showed that these two children were in a foster home where they were happy and content. They had the opportunity to move in and live with their great aunt, M.A., at the completion of the school year. Their older brother was already living with M.A., and he was eager to have them join him in the home. The younger brothers were happy with the move, and M.A. was open to adoption.

3. I.A.N.P., K.K.P. and Ai.R.W.

In addition, there was clear and convincing evidence that termination of F.W.'s parental rights to these three girls would not do more harm than good, even though there was no immediate prospect for a permanent placement. Dr. Weitz stated that I.A.N.P., K.K.P. and Ai.R.W. would experience some harm if F.W.'s parental rights were terminated. They would feel a sense of loss, but it would be mitigated by "whatever adult is in their lives."

Dr. Weitz noted that, even if the placement is not a permanent placement, such as an adoption, the children would be able to adapt to the separation from F.W. if they have a good relationship with their caretaker. Dr. Weitz also noted that "in a sense" the children were already living with that situation. The doctor pointed out that children's bonds with their siblings also would mitigate the effect of the termination of F.W.'s parental rights.

F.W. and the Law Guardian for I.A.N.P., K.K.P. and Ai.R.W., argue that the chance of finding an adoptive home that would keep these three children together is not promising. F.W. and the Law Guardian thus argue that the trial court erred by finding that the Division established prong four as to these three children. We cannot agree.

Fuentes, one of the Division's supervisors, testified about the select-home adoption process. Fuentes stated that before termination of parental rights, the Division is limited in the number of resources it can use. After termination of parental rights, the Division can utilize resources outside of New Jersey. Fuentes stated that, based on her experience, she believed the Division would be able to find homes for the three girls. She also said that the Division's priority is to find a home willing to adopt all three girls.

F.W. and the Law Guardian further argue that termination of F.W.'s parental rights to these three children is inconsistent with N.J. Div. of Youth & Family Services v. E.P., 196 N.J. 88 (2008). Again, we disagree. In E.P., the mother suffered a psychological breakdown and was unable to care for the child. Id. at 93. The child was placed with the maternal aunt, and thereafter the mother struggled with heroin addiction. Ibid.

The mother experienced homelessness and unemployment, and she was convicted on a drug charge. Ibid. The child was placed in twelve different foster homes over a ten-year period. Id. at 95. Eventually, the child was placed with a foster family, which initially planned to adopt the child but later decided against adoption. Id. at 96. The Division sought to terminate the mother's parental rights. Ibid. At the time of the trial on the Division's guardianship complaint, the mother had relapsed to heroin use, although she was committed to treatment with the ultimate goal of regaining custody of her daughter. Ibid.

The Division's expert testified that the mother was "the only consistent figure" in the child's life, but supported termination of parental rights because the mother did not possess the ability to adequately parent the child. Id. at 98 (internal quotation marks omitted). The Division also had not identified any particular home for adoption, and indicated that it could take several years to find a placement. Ibid.

The trial court ordered the termination of the mother's parental rights, noting that the severing of the parental ties might be devastating to the child. Id. at 101. The court found however, that termination of parental rights would give the child an opportunity for permanency. Ibid. The court noted that the child had strongly expressed a preference against adoption, and her preference should be give some weight. Ibid. We affirmed the trial court's judgment. Id. at 101-02.

The Supreme Court reversed, concluding that the Division had not established the fourth prong of the best interests standard. Id. at 108-11. The Court noted that the case involved a thirteen-year old girl, who was psychologically fragile and who had been "bounced around" numerous foster homes. Id. at 109. The Court pointed out that the child's only enduring bond was with her mother, and at the time of the guardianship trial, there was no permanent placement in sight. Ibid.

The Court said there was no corresponding benefit to termination of the mother's parental rights. Ibid. The Court noted that the trial court had been reluctant to order the termination of parental rights, given the "slender prospect" of adoption and the child's "certain and intense bond to her mother." Id. at 110. The trial court had invited the mother to reopen the case if adoption did not materialize and she had stabilized her life. Ibid. The Supreme Court concluded that there was insufficient evidence in the record to show that termination would not do more harm than good. Ibid.

We are convinced that the circumstances presented in this case are substantially different from those in E.P. Here, there is no evidence that the three girls have "certain and intense" bonds to their mother. Indeed, Dr. Weitz opined that all of the children's bonds with F.W. are "insecure and anxious." Moreover, there is no evidence that any of the girls are psychologically fragile, like the child in E.P.

Furthermore, Dr. Weitz testified that any harm from termination of parental rights could be mitigated even if the children are not permanently placed so long as the foster parents provide appropriate care. The girls' sibling bonds also would help mitigate any harm from the termination of F.W.'s parental rights. The Division's supervisor testified that she believed the Division would be able to find a permanent placement where the girls could remain together. In addition, the three girls do not suffer from any behavioral problems that might impede their adoption. We are therefore convinced that the trial court's judgment terminating F.W.'s parental rights to the three girls is not inconsistent with E.P.

F.W. and the Law Guardian for I.A.N.P., K.K.P. and Ai.R.W. further argue that the trial court erred by failing to give sufficient weight to the girls' preference to return to their mother. However, as the Court noted in E.P., the child's "wishes may often not be in [his or her] own best interests." Id. at 113. "Ultimately, the family court is charged with making decisions that will protect the health, safety, and welfare of the children who come before it." Ibid. Here, the record supports the trial court's finding that termination of F.W.'s parental rights was in the best interests of all six children.

Affirmed.

1 Prior to June 29, 2012, the Division was known as the Division of Youth and Family Services. See L. 2012, c. 16, effective June 29, 2012.