NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.A.-S.

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NOT FOR PUBLICATION WITHOUT THE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.

A.A.-S.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.A., C.S. and J.M.,

Minors.

_____________________________________________

SubmittedMay 19, 2015 Decided June10, 2015

Before Judges Fisher, Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-111-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Gillian Hemstead, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant A.A.-S. appeals from a final judgment terminating her parental rights to three of her five children.1 Although effectively conceding that she harmed her children by failing to provide routine and necessary medical care, speech therapy and special education assistance and by consigning them to foster care for two years because of her inability to properly care for them and meet their needs, she contends the Division of Child Protection and Permanency did not prove that termination of her parental rights was in the children's best interests, N.J.S.A. 30:4C-15.1a. She also claims her due process rights were violated when she was shackled during one day of trial. The Division and the Law Guardian oppose defendant's appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm.

Defendant's three children at issue in this appeal are Kerry, age twelve; Casey, age six; and Jim, age three.2 Kerry's father voluntarily surrendered his parental rights in favor of Kerry's foster parents. Casey's father, defendant's husband, died in 2013. Jim's father is unknown. Since 2002, defendant's family has been the subject of approximately forty referrals to the Division.

Kerry was initially removed from defendant's custody in 2003 shortly before her first birthday due to defendant's "significant psychiatric problems," and defendant subsequently stipulated that her transient and unstable living circumstances had placed Kerry at risk of harm. After the Division determined that conditions had been remediated, Kerry was returned to defendant's custody in 2004.

By the end of 2008, however, defendant reported she was overwhelmed by the effort necessary to maintain her family's living quarters and needed help in providing a safe environment for her four children. She had also failed to provide the children with required medical care, including following up with Kerry's doctor for a recommended hearing test. In 2009, the Division established a case plan for extensive services to meet the family's needs. Part of that plan called for defendant to resolve Kerry's thirty-nine unexcused absences from school, and address her recurring head lice problem.

Defendant underwent a psychiatric evaluation in April 2009, and was diagnosed with bipolar disorder with related mood swings and emotional stress. Follow-up visits in 2009 and 2010 resulted in repeated diagnoses of bipolar disorder, personality disorder and generalized anxiety. Based on defendant's behavior during one such visit in 2010, the doctor determined that no more prescriptions for pain medication should be written because the "patient is self-prescribing and has refused three attempts to obtain bloodwork." The Division obtained medical records for defendant that revealed she repeatedly reported to different area hospitals over an extended period complaining of a variety of different physical and emotional problems for which she was prescribed pain medicine and anti-anxiety drugs.

In July 2010, Casey, then twenty-two months, was taken for a physical exam. The doctor found him underweight and with a delay in language development. He also had a vision problem. The physician referred defendant to a pediatric ophthalmologist, but she failed to take Casey to the appointment.

In July 2011, twelve-day-old Jim was taken to a hospital and diagnosed with thrush. Although defendant was advised to take Jim to his pediatrician as soon as possible, she did not do so. Defendant was also referred to a specialist to address a urological condition the doctors discovered shortly after Jim's birth. Defendant never made the appointment.

In September 2011, defendant reported to the Division that one of her other children's father had "crunched" the child's finger and burned him with a cigarette during a visit. After investigating the incident, the Division learned from that child that his mother had instructed him to say his father had hurt him, when what really happened was that Casey had slammed the boy's finger in a door while both were in defendant's care. The "burn" was a mole or raised scar. When she found out about her son's statements to the Division's investigator, defendant refused to allow the investigator to speak to the boy alone.

The Division learned at about that time that defendant was not taking her medication for her bipolar disorder because she did not like the way it made her feel. Defendant's doctor reported days after her false report that defendant had called claiming she was having a nervous breakdown. The doctor directed her to the emergency room. Defendant went with the man she was then seeing, leaving nine-year-old Kerry in charge of her four siblings, including two-month-old Jim.

Defendant thereafter agreed to comply with recommended parenting guidelines for better supervision and care of her children, and to obtain a new psychiatric provider for herself and a new primary physician for the family. In December 2011, defendant told a visiting caseworker that she had obtained a new family physician. The Division later learned that while defendant had visited the practice, the children had not. When defendant thought Jim was breathing strangely that month, she took him to a hospital where he was diagnosed with bronchospasms. The emergency room doctor prescribed medication and advised defendant to follow up with his pediatrician. Defendant never made a follow-up appointment.

In January 2012, a visiting Division caseworker discovered the house somewhat dirty and very messy with the children sleeping on mattresses on the floor without sheets and six-month-old Jim with peeling skin on his chin and neck. When the caseworker returned several days later, she found the street blocked off by police attempting to deal with three-year-old Casey, who had opened an upper-floor window which led to the roof and was throwing his toys out. Six weeks later, the Division received a report from a nurse who had reviewed and evaluated the children's medical records. She recommended that the children be provided with medical services immediately to address conditions that had not been timely treated.

In March 2012, the Division finally filed its complaint for guardianship after a psychologist conducting an evaluation of defendant recommended she be deemed unfit to parent her children because of "questionable reliance on pain medications sought from different hospitals and clinics, her extraordinary poor judgment, her failure or incapacity to supervise her children properly, her medical non-compliance and her defiant behavior towards case workers, as well as her non-credible reporting" during her psychological testing. The psychologist further recommended that defendant be provided with a "[p]ain medication specialist to coordinate treatment and be [the] sole prescriber of pain medications" and that she undergo a psychiatric evaluation monthly while attending an "Outpatient Day Hospital Program." The psychologist's prognosis for defendant's successful treatment was "[p]oor."

The psychologist's prediction proved correct. Over the next two years, defendant failed to engage in recommended substance abuse and mental health programs, failed to timely attend psychiatric evaluations, failed to complete recommended individual counseling sessions focusing on parenting and decision-making skills and tested positive for cocaine and opiates. In January 2014, weeks before the guardianship trial, defendant failed to show up for scheduled psychological and bonding evaluations. The Division rescheduled the evaluations, only to have defendant again fail to attend. Defendant finally attended evaluations conducted at the behest of the Law Guardian. The Division's expert was limited to testifying to his bonding evaluation between the children and their foster parents.

The Law Guardian's expert diagnosed defendant with somatoform disorder, unspecified anxiety disorder, post- traumatic stress disorder, unspecified depressive disorder and unspecified personality disorder with dependent, histrionic, anti-social features. He concluded that defendant was significantly psychologically disabled and not capable of parenting, stating that "any children in her care would be judged to be at significant risk." He found no "appropriate emotional bond" between defendant and her children and testified they would not be harmed if defendant's rights were severed. He testified that Kerry, while not blaming her mother for the past living arrangements, explained to him that

[m]y mother can't take care of us . . . because she's . . . sick in the head, she can't help us. She can't take care of us. I want to stay where I am. I want to be able to come home and do my homework. I want to go to college from this house. I want to come back to this house. I don't want to move.

In his report, the expert related that Kerry told him she wanted to be with her foster parents for the rest of her life and "want[ed] [her] brothers to be safe."

Both experts testified that the children were securely bonded to their foster parents, who had cared for all three children since July 2012 and wished to adopt them. The Division's expert recounted his conversations with Kerry who explained to him that her mother's physical limitations made it impossible for her mother to care for her and her brothers. The Law Guardian's expert testified that Kerry reported that her mother "was always telling me to take care of my brothers. There were no rules at Mom's house. Sometimes I didn't go to bed. I made breakfast. I fed my brothers McDonald's. When my mother made breakfast, she fed us hotdogs. . . . Mom was always sleeping, not caring for us." Both experts opined that the children's best interests would be served by adoption by the foster parents.

The trial judge found the Division had clearly and convincingly proved all four prongs of the best interests test. The judge found defendant had failed to provide routine medical care for her children, despite having signed multiple case plans agreeing to rectify the problem, she never did so. The judge noted defendant's failure to insure timely immunizations as well as her failure to follow through with Kerry's hearing test, with Casey's pediatric ophthalmologist appointment to address possible right exophoria and her failure to consult a urologist for Jim's hypospadias or his pediatrician for his respiratory issues. The judge found defendant's lack of compliance with services aimed at remediating her parental deficiencies resulted in her children remaining in foster care for two years. She emphasized that the issue was not "inadequate parenting" but an utter "failure to provide even minimal" care to Kerry, Casey and Jim.

The judge found that despite the many services and referrals the Division provided defendant, she still had not "engaged in any program to address her serious mental health needs," or done anything to engage in recommended physical therapy or treatment with a pain specialist to address her claimed physical problems.3 Defendant made no progress in acquiring the parenting skills she lacked and thus failed to remediate the problems leading to the children's placement. The judge concluded that defendant's "past and present behavior" made it "unlikely that she will be an appropriate caregiver in the foreseeable future."

The judge further found that the Division had made more than reasonable efforts since 2002 to provide defendant with services she needed to correct the problems that led twice to the removal of her children. Defendant failed to cooperate with most of the Division's efforts and no suitable relative placement was available. Based on the testimony in the record and the unrefuted and unanimous view of the experts, the judge concluded that termination of defendant's parental rights would not do more harm than good.

Defendant argues that the trial judge erred in finding the Division proved the second through fourth prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. Specifically, defendant argues the judge's findings that she was unable or unwilling to eliminate the harm facing her children and unable to provide them a safe and stable home environment were erroneous; that the services the Division provided "were not appropriate under the circumstances and . . . violated the Americans With Disabilities Act," 42 U.S.C.A. 12101 to 12213 (ADA); and that the evidence did not support a finding that termination of her rights would not do more harm than good. We disagree.

N.J.S.A. 30:4C-15.1 provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). Our review of the trial court's application of these standards to the facts of record is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "'unless they are so wholly unsupportable as to result in a denial of justice.'" Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted).

Applying those standards here, we are satisfied that the trial judge's findings are amply supported by the credible testimony in the record. Defendant's main argument that she complied with services to the best of her physical ability but that the Division's failure to provide ADA accommodations for services prevented her from utilizing them and thus led to the court's erroneous finding that she was unable or unwilling to eliminate the harm to her children is utterly without merit. First, defendant at no time ever contended that she required accommodation under the ADA. Having deprived the trial court of the ability to address the argument, defendant may not raise it for the first time on appeal. Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). Second, there is no proof on this record that defendant had a disability that required accommodation. And third, we have held that the ADA does not provide a defense in a termination of parental rights proceeding, because to allow the defense would interfere with a court's consideration and application of the best-interests standard. N.J. Division of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

The Division's proofs in this case were overwhelming. Despite a multitude of services provided over the course of a decade, defendant failed to provide the most minimal care for her children, causing them to suffer developmental disabilities. We agree with the trial court that the record in this matter is clear and convincing that defendant was not acting as a parent to her children and there was no hope she would do so in the reasonably foreseeable future. Given the relationship the children had forged with their foster parents, there was no question on this record that termination of defendant's rights would not cause more harm than good.

Finally, we reject defendant's due process claims relating to her being shackled on the second day of trial, another argument not raised to the trial court. Although the record is not entirely clear on this point, it appears that on the morning of the second day of trial, defendant was arrested under an outstanding bench warrant for failure to pay child support for her two other children. Apparently as a result of the arrest, she was placed in handcuffs and leg shackles, both of which she wore as she was seated at counsel's table.

After making his appearance, defendant's counsel asked that defendant be released "in order to take notes." The court immediately agreed, stating: "Certainly. Can we have her handcuffs removed please?" No mention was made of the leg shackles by either counsel or the court. When defendant, through counsel, asked at the end of the day why she was shackled, the judge responded that she did not "have anything to do with that."

It thus appears from the record that the trial judge provided defendant with precisely the relief her counsel requested with regard to her manacles. It also appears that the decision to handcuff and shackle defendant was not made by the trial judge. Because defendant has failed to provide any information about the circumstances surrounding the decision to manacle her, she has made it impossible for us to address her claim that her due process rights were violated by that decision. There is no indication from the record available to us that defendant asked to have the leg shackles removed or complained about the court's failure to do so. There is certainly nothing in the record to show that defendant asserted to the trial court that wearing the shackles during the trial day violated her due process rights, aggravated any existing medical condition, caused her pain or in any way interfered with her ability to communicate with her counsel or defend herself. We find no error.

Having reviewed defendant's remaining arguments, we find them to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Defendant's other two children are in the custody of their fathers and are not part of this appeal.

2

These are fictitious names chosen to protect the children's identities.

3 Defendant claimed throughout these proceedings that she required back surgery and that she suffered from constant and debilitating pain from a back problem. The only evidence in the record, however, noted minimal degenerative disease in her spinal column, with mild changes in her lumbar area. Her doctor specifically found surgery not required, but instead recommended a regimen of physical therapy, coupled with treatment by a pain specialist which defendant did not pursue.