DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.R.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF C.R., Minor.

December 20, 2016

Submitted December 6, 2016 Decided

Before Judges Reisner, Koblitz and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-05-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer Russo-Belles, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annemarie Sedore, Designated Counsel, on the brief).

PER CURIAM

Defendant J.R. (Jane)1 appeals from a December 7, 2015 order terminating her parental rights to her daughter C.R. (Cathy), who was born in 2005. The Division of Child Protection and Permanency (Division), and the child's Law Guardian, argue in support of the order. We affirm, substantially for the reasons stated by Judge John R. Rauh in his oral opinion issued on December 7, 2015, and his supplemental letter opinion dated March 11, 2016.

I

The history of this case, as well as the trial evidence, is recounted in detail in the opinions of Judge Rauh, who was the second judge assigned to the case. We summarize them more briefly here. There is no dispute that Jane suffers from schizoaffective disorder, bipolar type, as well as cognitive limitations. She has had significant difficulty acting as a parent to her three children. Cathy and her two older brothers were first removed from defendant's custody in 2008, after Jane's husband physically abused the boys.2 The Division provided services to Jane and her family for several years, however, a first guardianship trial ended in dismissal of the Division's complaint.

The first judge's decision was premised on his conclusions that, at a time when the Division had a duty to attempt reunification of Cathy with Jane, the agency instead stopped making good faith efforts to reunify the family and focused on termination of parental rights.

The first judge did not find the Division's case worker witnesses credible, and did not credit the testimony of the Division's expert witness, Dr. Schwoeri, or Cathy's therapist, Dr. Wells-Manlandro. On the other hand, the first judge credited the testimony of Jane's expert, Dr. Gruen, and Jane's therapist, Dr. Zielinski. Notably, Dr. Janet Cahill, a psychologist who had evaluated Jane and her children multiple times, did not testify at the first guardianship trial, because she was not available at the time. Hence, the first judge did not consider her testimony or pass upon her credibility.

After dismissing the Division's guardianship complaint, the first judge ordered that Cathy be returned to Jane's custody in 2013. As further discussed below, that reunification ended badly. In 2014, Judge Rauh, to whom the case had been reassigned, permitted the Division to file another guardianship complaint. That case was tried in September 2015.

At the 2015 guardianship trial, the Division presented expert testimony from Dr. Cahill and background testimony from Tracy Wilson, a Division case worker. Neither Dr. Cahill nor Wilson had testified at the first trial. Jane testified, but the defense did not present any expert witnesses.

The Division presented testimony that, despite being provided with homemaking services and therapy for many years, Jane was barely able to care for herself, due to her cognitive limitations and her mental illness. Jane lived in a chaotic household, where she provided her children with inadequate supervision and structure. This was particularly harmful to Cathy, who was sexually molested at age three, had significant emotional problems, and needed a highly structured environment to help her cope with her emotional issues.

Wilson testified that, after the first trial in 2012, Cathy was removed from the relatively structured home of her resource parent and placed back in her mother's household. While she was living with her mother, Cathy was often absent from school, and frequently attended school wearing dirty clothing and appearing unbathed. She was hospitalized after threatening to commit suicide.

Wilson testified that Jane's home "was very chaotic, there [were] a lot of people in and out." Jane allowed her two sons' teenage friends to stay at the house until all hours of the night, drinking, smoking and engaging in sexual activity. She also allowed Cathy, who was then eight years old, to stay up with them, watching R-rated horror movies and playing on the internet. Wilson testified that

[Cathy] . . . had difficulty managing her emotions. She would curse, she would throw temper tantrums. She would be up at all hours of the night. She would at times act out sexually sitting on her brother's lap and talking about sexually inappropriate things.

. . . .

She was struggling because she didn't have the structure that she needed, and . . . her needs just weren't being met.

Jane once again lost custody of Cathy in September 2013, after letting a juvenile sex offender continue to visit her home, despite complaints from Cathy and one of Cathy's brothers that this juvenile had molested them. Jane even allowed the juvenile to stay overnight, after the police and the Division warned her to keep him out of her house. Jane told the Division that she thought it was acceptable to let the juvenile come back into her house because Cathy had recanted her allegations about him. Because Jane continued to defend her decision despite the case worker's multiple attempts to explain why it was a poor choice, the Division concluded that Jane was unable to "recognize risk[s]" of harm to her children, and therefore opposed Jane's requests for unsupervised visitation with Cathy.

According to Wilson, since Cathy was removed from defendant's custody in 2013, Cathy's behavior has improved markedly. Wilson testified: "She's calmer, she's much better at managing her emotions, she's not acting out sexually anymore. Her social interaction with other kids her age has improved." At the time, Cathy was living with a resource family that wanted to adopt her.

Dr. Cahill, who had evaluated Jane and her three children several times since 2008, testified cogently and in great detail about Jane's inability to function as a safe and effective parent. According to Dr. Cahill, despite years of parent training and therapy, Jane had no ability to provide her children with structure and discipline. While she was warm and loving toward them, she was unable to set limits for them or to protect them from dangerous situations. As a result, the household was chaotic, with teenage visitors coming in and out at random, engaging in inappropriate behavior to which Cathy was exposed.

Dr. Cahill testified that both Cathy and her oldest brother seemed to act as Jane's parents, telling her what to do and what they would or would not do, rather than accepting Jane's parental authority. Dr. Cahill explained the disastrous effect this had on Cathy's emotional health, and the tremendous improvement Dr. Cahill observed when Cathy lived with a capable resource parent. Dr. Cahill also testified that during several of her evaluations with defendant and the boys, they all blamed Cathy for negative events in the home, rather than defendant taking responsibility for her failure to control her own household.

Dr. Cahill testified that, although Cathy and her mother loved each other and had a bond, it was more like a peer-to-peer bond than a parent-child bond, and it was unhealthy for Cathy. Dr. Cahill testified that Cathy needed a permanent home, in a structured environment, with a resource parent who could set limits in a loving way. In Dr. Cahill's opinion, Jane had an uphill battle just to care for herself, and could never provide Cathy with the parental care that she needed. Consequently, Dr. Cahill opined that termination of Jane's parental rights would not do more harm than good and was in Cathy's best interests.

In brief testimony, Jane stated that she loved Cathy and wanted her to return home, and asserted that she would take good care of her.

In his detailed opinion, Judge Rauh credited the testimony of Wilson and Dr. Cahill. He found that despite years of receiving services, Jane remained incapable of understanding her parental responsibilities and was unable to safely or effectively care for Cathy. He also found that Jane's chaotic and neglectful parenting had inflicted severe harm on Cathy and would continue to do so if the child were returned to her care. The judge found that the Division had satisfied all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and that termination of Jane's parental rights was in Cathy's best interests.

On March 7, 2016, while this appeal was pending, the Division sent this court a letter pursuant to Rule 2:6-11(f), advising that Cathy had "been moved from her prospective adoptive home and placed with a previous resource placement that has expressed an interest in adopting [her]."3 On March 11, 2016, Judge Rauh issued a supplemental letter opinion addressing the Division's letter.

In his March 11 opinion, the judge emphasized that his earlier decision "was made independent of [Cathy's] placement" and did not hinge on her placement "with her then resource parent." The judge accepted Dr. Cahill's opinion that

[Cathy's] only chance of developing a secure, healthy relationship with an adult is if [Jane's] parental rights are terminated.

. . . [Cathy] is the type of child referenced to in New Jersey Division of Youth and Family Services vs. A.W., 103 N.J. 591, 611 (1986). That is, a child with special needs and special circumstances that warrant the termination of parental rights even in the absence of immediate adoption possibility.

Judge Rauh concluded that

Reduced to its basics, according to the only expert in this case, as well as the seven year history, this is a parent who cannot and will not stop harming the child. As stressed in my decision [Jane] cannot and will not protect [Cathy] from harm from third parties. Dr. Cahill stressed in bonding and psychological evaluation that returning [Cathy] would [be] especially damaging . . . Termination of parental rights is necessary to stop the harm that the relationship is causing to the child. This conclusion is supported clearly and convincingly by the overwhelming evidence in this case.

II

Our review of Judge Rauh's decision is limited. N.J. Div. of Youth & Family Servs. v. G.L. 191 N.J. 596, 605 (2007). Our role is to determine whether his decision is supported by substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We owe deference to the trial judge's factual findings, because that judge has a superior ability to gauge witness credibility and "possesses special expertise in matters related to the family." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration. . . ." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (citing Cesare, supra, 154 N.J. at 412). Ultimately, the trial judge's factual findings should not be overturned unless they went "'so wide of the mark'" that appellate intervention is "necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (quoting N.J. Div. of Youth & Family Servs. v. E P., 196 N.J. 88, 102 (2008)).

"Parents have a constitutional right to raise their children[,]" but "that right is not absolute." Id. at 447. It is "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002) (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). Nevertheless, because termination of parental rights permanently severs the legal relationship between parent and child, this action should be taken "only in those circumstances in which proof of parental unfitness is clear." F.M., supra, 211 N.J. at 447 (citing E.P., supra, 196 N.J. at 102-03).

The family court must focus its inquiry in a termination proceeding upon the best interests of the child. Ibid. To that end, N.J.S.A. 30:4C-15.1(a) provides that parental rights should only be terminated when the following standards are met

(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

. . . ;

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

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

The burden is upon the State to demonstrate by clear and convincing evidence that a parent "has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 768, 102 S. Ct. 1388, 1402, 71 L. Ed. 599, 616-17 (1982)). The court must not presume parental unfitness, and "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citing In re Adoption of D., 61 N.J. 89 1972). The family court must consider "not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." R.L., supra, 388 N.J. Super. at 87 (citing J.C., supra, 129 N.J. at 10).

After reviewing the record with those standards in mind, we find no basis to second-guess Judge Rauh's factual findings, or his credibility determinations. In light of those factual findings, which are supported by substantial credible evidence, Judge Rauh's legal conclusions are correct.

On this appeal, defendant presents the following points of argument

POINT I

THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CONSIDER ALTERNATIVES TO TERMINATION OF JANE'S PARENTAL RIGHTS, N.J.S.A. 30:4C-15.1(a).

POINT II

THE COURT ERRED IN FINDING THAT THE DIVISION ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, N.J.S.A. 30:4C-15.1(a)(4).

POINT III

THE COURT COMMITTED REVERSIBLE ERROR WHEN IT USED JANE'S POVERTY AND HER COGNITIVE INCAPACITY IN DECIDING TO TERMINATE HER PARENTAL RIGHTS.

POINT IV

THE COURT ERRED WHEN IT RELITIGATED ISSUES OF ULTIMATE FACT THAT WERE PREVIOUSLY FINALLY ADJUDICATED BY A COURT OF THE SAME STANDING. Not Raised Below.

POINT V

JANE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

POINT VI

THE COURT SHOULD GRANT A REMAND OF THE JUDGMENT OF GUARDIANSHIP BECAUSE THE MAJOR CHANGE IN THE PLACEMENT STATUS OF THE CHILD UNDERMINES THE PREMISE THAT TERMINATION OF MOTHER'S PARENTAL RIGHTS WOULD ACHIEVE PERMANENCY FOR THE CHILD, N.J.S.A. 30:4C-15.1(a)(4).

Several of defendant's arguments are raised for the first time on appeal, and none have merit. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); R. 2:11-3(e)(1)(E). Defendant contends that the Division should have provided her with more social services. That argument is not supported by the record. Jane was provided with a plethora of services, however, they were not sufficient to enable her to function as a parent. Wilson testified that the Division could not provide Jane with twenty-four-hour a day, seven-days-a-week supervision in her house to be sure that Cathy was safely and effectively parented. Dr. Cahill also testified that that level of intervention was not available and, in any event, would not render defendant a fit and safe parent. We agree. Even if such a service were available, the Division was not legally required to install what would amount to a surrogate parent in Jane's home to run the household and substitute the surrogate's parental judgment for Jane's impaired judgment.

Nor can we agree that the Division failed to consider kinship legal guardianship (KLG) as an alternative, a contention defendant raises for the first time on appeal. As defendant recognizes, KLG is not a defense to termination of parental rights, where adoption is feasible and likely. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). Defendant's reliance on New Jersey Division of Youth and Family Services v. H.R., 431 N.J. Super. 212 (App. Div. 2013), is misplaced. Defendant did not identify any relative who could have provided a KLG arrangement. And, unlike H.R., there is no evidence that the Division provided any resource parent with misinformation about KLG. See id. at 232-33. Moreover, unlike H.R., there was no evidence that defendant had the potential to become a fit parent in the future, such that she might be able to regain custody of Cathy if a caretaker were willing to provide KLG. See id. at 229.

For the first time on appeal, defendant argues that the trial judge should not have considered factual evidence which had also been presented at the earlier guardianship trial. Because Jane's counsel made no objection, and also elicited that type of prior evidence in questioning witnesses, her appellate argument is barred by the doctrine of invited error. N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 340-42 (2010). However, even if we consider the argument it is without merit.

The events that occurred after Jane regained custody of Cathy in 2013 did not take place in a vacuum and cannot be considered as though the parent-child relationship had no history. We find no error, much less plain error, in Judge Rauh considering the prior factual history of the case as background for what occurred after Cathy was returned to Jane's custody. See R. 2:10-2. However, we are also satisfied that Judge Rauh based his decision on current evidence presented at the 2015 trial, including the very convincing testimony of Dr. Cahill, who did not testify at the earlier trial.

Defendant's claim that her 2015 trial counsel provided ineffective assistance is without sufficient merit to warrant discussion, beyond these comments. R. 2:11-3(e)(1)(E). The first judge's 2013 decision gave defendant a second chance at parenthood. She failed, and Judge Rauh concluded there was no realistic likelihood that she would be more successful in the future. The evidence overwhelmingly supports that conclusion. Based on our reading of the transcripts, defendant did not lose her parental rights because her attorney rendered ineffective assistance at the trial. He did not. Moreover, contrary to defendant's argument, had the attorney filed a written summation, or objected to the Division's summation, it would not have changed the outcome of the trial.

Finally, for the reasons Judge Rauh stated in his supplemental opinion, we decline to remand this case for further hearings concerning the child's current pre-adoptive resource family. There are some cases where a child has a constructive, supportive relationship with her birth parent, and it is not in the child's best interests to terminate that relationship because "there [is] no permanent placement for [the child] in sight." E.P., supra, 196 N.J. at 109. In light of the evidence, including Dr. Cahill's unrebutted testimony, this is not one of those cases.

Affirmed.

1 We use initials and pseudonyms to protect the family's privacy. For clarity, we use the same pseudonyms that appear in defendant's brief.

2 The boys are in placements separate from Cathy, are now over the age of eighteen, and are not involved in this appeal. The children's father is deceased.

3 While the guardianship case was pending, Judge Rauh had interviewed Cathy, who told him that she wanted to live with her mother, but that she liked living with her former resource parent.