NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.N.

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NOT FOR PUBLICATION WITHOUT THE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 only binding 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.

K.N.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.Y.N.,

a Minor.

_____________________________________________

October 17, 2016

Submitted September 27, 2016 Decided

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-29-15.

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

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian for minor (Toya Davis, Designated Counsel, on the brief).

PER CURIAM

When the State seeks to terminate parental rights, the Division of Child Protection and Permanency (the Division) must prove by clear and convincing evidence each of the following

(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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

Following the guardianship trial in this case, the Family Part entered an order terminating defendant K.N.'s (Karen) parental rights to her eight-year-old son, K.Y.N. (Kasey).1

Before us, Karen contends the Division failed to prove the first, second and fourth prongs of the statutory test. The Division and Kasey's Law Guardian argue the proofs were sufficient and urge us to affirm the order. Having considered the arguments of the parties in light of the record and applicable legal standards, we affirm.

I.

In October 2012, the Division received a referral from the Psychiatric Unit of Hackensack University Medical Center, where Karen had presented herself, depressed and four-months pregnant. Karen was evaluated for her admitted use of marijuana, and subsequent urine screens were positive. In March 2013, Karen gave birth to L.F.2 Following the delivery, Karen tested positive for marijuana use, but the baby did not.

The Division filed a Title Nine action seeking care and supervision of the children. In April 2013, Karen stipulated to a finding of neglect. Two months later, after Karen failed to comply with a previously-entered safety plan and remained non-compliant with services, the Division effected an emergency removal of the children and was subsequently granted custody of both. Kasey was placed with his paternal aunt, B.P. (Beth), where he remained throughout the trial.

Karen's compliance with court-ordered services thereafter was sporadic at best. She failed to complete parenting classes, tested positive for alcohol use and was discharged from a mental health outpatient program because she failed to attend nearly one-half of the treatment sessions. Karen's attendance at supervised visitation was also intermittent, and she was discharged from individual and family therapeutic services for non-compliance. In June 2014, the court approved the Division's proposed permanency plan of termination followed by adoption, and in July, the Division filed its guardianship complaint.3

At trial, which took place over non-consecutive days in August, September and October 2015, the Division's caseworker, Ariana Uceta, testified about her involvement with the family and the services provided to defendant. Uceta summarized the Division's continued concerns

[Karen] hasn't been able to successfully complete substance abuse treatment. Therefore, the concerns of her substance use haven't been addressed. [Karen] hasn't completed mental health services, therefore, the mental health concerns haven't been addressed. And she hasn't been compliant with her visits. Therefore, we still have concerns regarding parenting. She was referred to the therapeutic supervised visitation program. They referred her to parenting classes again, although, she had already completed those services. And she hasn't been able to address any of those concerns, to date.

Uceta also testified that Karen did not have stable housing and described the difficulty the Division had in locating Karen at various times during the litigation. From July 2015 until trial, Karen was incarcerated for an unspecified criminal charge in Passaic County.4

Dr. Robert Kanen, a psychologist, also testified as an expert witness regarding his evaluation of Karen, and the bonding evaluations he conducted between Karen and Kasey, and Kasey and Beth. Dr. Kanen stated that Karen's low cognitive functioning reduced her ability to supervise a child and deal with the complications of daily life. Dr. Kanen also concluded that Karen was unmotivated to resolve her substance abuse and mental health problems, and was a poor candidate to complete any services provided by the Division. Dr. Kanen opined that Karen "could not provide a child with a permanent, safe, and secure home in the foreseeable future."

Regarding his bonding evaluation of Kasey and Karen, Dr. Kanen concluded the attachment between the two was "insecure." The doctor noted that Karen's inconsistent visitation added to this insecurity. Dr. Kanen acknowledged that terminating Karen's parental rights would evoke a "grief reaction" in Kasey, but returning him to her care would expose Kasey to an unnecessary risk of harm.

Dr. Kanen, however, concluded that Kasey had a secure bond with Beth. He had been living with Beth for some time and had made significant progress in school. Dr. Kanen opined that Kasey would suffer serious and enduring harm if he was not allowed to remain with Beth, who was prepared to adopt the child.

Karen did not testify or call any witnesses at trial. After considering summations, in a comprehensive written decision which we discuss below, the judge determined that the Division had proven all four prongs of the statute by clear and convincing evidence. On December 21, 2015, he entered the order under review, and this appeal followed.

II.

"The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The four prongs contained in N.J.S.A. 30:4C-15.1(a) require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the factual findings of the trial judge, who had "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact-finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "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)).

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 must show "that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child,'" F.M., supra, 211 N.J. at 449 (quoting K.H.O, supra, 161 N.J. at 352), but it "does not have to wait 'until a child is actually irreparably impaired.'" Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

The judge found Uceta and Dr. Kanen to be credible witnesses. He concluded that Karen's "continued substance abuse, her untreated mental health issues and her failure to provide stable shelter" endangered Kasey. The judge also noted Karen's recent incarceration, her lack of employment since 2013 and the absence of stable housing "for at least two years." He concluded the Division had proven that Kasey's "safety, health and development were endangered and continue to be endangered . . . because [Karen] has failed to remediate her parental deficits."

Before us, Karen argues the evidence failed to demonstrate that she caused any harm to Kasey, or that their continued relationship endangered the child. She points to the limited drug screens that were positive for marijuana, Kasey's good physical health while in her care and Uceta's acknowledgment that Karen had a loving and caring relationship with Kasey.

However, the record reveals Kasey had suffered actual harm as a result of the parental relationship. Prior to his removal, Kasey was performing poorly in school and had amassed an extraordinary number of absences. Uceta testified that during an evaluation by the Audrey Hepburn Children's House, Kasey displayed disturbing overtly sexual behavior. The records also revealed that Karen frequently behaved in a belligerent manner toward the child. In addition, Karen had tested positive for alcohol on a number of occasions, and once for oxycodone. Dr. Kanen's opinion was that Karen was unlikely to avail herself of services provided in the future to address these problems. We conclude the Division met its burden of proof as to prong one.

The second prong "relates to parental unfitness," which may be established by demonstrating that "the parent is 'unwilling or unable to eliminate the harm'" or "the parent has failed to provide a 'safe and stable home'" and "a 'delay [of] 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)); see also F.M., supra, 211 N.J. at 451 ("Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'") (alteration in original) (quoting K.H.O., supra, 161 N.J. at 363). 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.) (citing In re Guardianship ofJ.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007).

In this case, the judge found that Karen's recent incarceration, her inability to secure stable housing, her lack of employment and her failure to complete services provided by the Division demonstrated "an unwillingness or inability to eliminate the harm that endangers [Kasey's] health and development." He cited Dr. Kanen's opinion that Karen "lacked self-awareness and [had] a poor understanding of her weaknesses and an inability to perceive parental performance errors . . . ."

Karen argues that she had actually completed several of the programs to which she was referred, thus demonstrating her amenability to correct her problems. She contends that Dr. Kanen's opinions were not supported by the evidence because prior to the Division's involvement, she was employed and able to support Kasey in a stable home environment.

Our review, however, convinces us that while Karen may point to isolated, favorable proof in the record, the judge's factual findings and legal conclusions as to prong two were adequately supported by the evidence as a whole. R. 2:11-3(e)(1)(E). We find no reason to disturb them.

The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609.

In most circumstances, the court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents[?]" Id.at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25).

Noting Dr. Kanen's expert testimony was "uncontroverted," the judge found that termination of Karen's parental rights would result in a "grief reaction" in Kasey, but that with "therapy and . . . the help of [Beth] any grief would be mitigated." The judge further concluded that any separation from Beth would cause Kasey "serious harm." Finally, the judge concluded that any delay would "threaten to unravel the progress" Kasey had made while in Beth's care.

Karen argues Dr. Kanen's opinions were not supported by the evidence in the record. In particular, she notes that Beth's housing situation, while stable, was dependent upon public assistance and custody of Kasey, and that Beth herself had not been gainfully employed for many years.

Having actually sat through the trial and listened to the testimony, the judge was fully able to assess the strength of the factual pillars supporting Dr. Kanen's opinions. We see no principled reason to second guess the judge's conclusions. Dr. Kanen's unequivocal opinion, as accepted by the judge, demonstrated clear and convincing proof of the fourth statutory prong.

Affirmed.

1 We use initials and pseudonyms to maintain the confidentiality of those involved.

2 L.F. was eventually placed with her biological father and was not a subject of the Division's guardianship complaint. During the litigation, Karen gave birth to a third child who also was not the subject of this guardianship action.

3 The guardianship complaint named Karen and E.K., Kasey's father as defendants. On the first day of the guardianship trial, E.K. executed a voluntary surrender of his parental rights.

4 Karen was not present for the last day of trial, October 2, 2015. Defense counsel indicated that Karen had been released from custody but had not contacted her attorney since her release.