DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.C.G.

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NOT FOR PUBLICATION WITHOUT THE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.

N.C.G.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF I.C.G. AND K.G., minors.

_________________________________

March 22, 2016

Submitted December 7, 2015 Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from Superior Court of New Jersey, ChanceryDivision, FamilyPart, Essex County, Docket No. FG-07-195-14.

JosephE. Krakora,Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief).

JohnJ. Hoffman,Acting AttorneyGeneral, attorney forrespondent (AndreaM. Silkowitz, AssistantAttorney General,of counsel; Rita Ann Gesualdo, Deputy Attorney General, on the brief).

JosephE. Krakora, PublicDefender, Law Guardian, attorneyfor minors (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant N.C.G. appeals from a January 20, 2015 guardianship judgment terminating her parental rights to her two children, then ages seven and four. Defendant contends the Division of Child Protection and Permanency (the Division) did not prove termination of her parental rights was in the children's best interests, as codified in N.J.S.A. 30:4C-15.1(a)(1)-(4). Defendant also claims her trial counsel was ineffective. The Division and Law Guardian oppose defendant's appeal. For the reasons that follow, we affirm.

I.

The Division became involved with defendant in August 2007 two days after the birth of her first child, who was born with birth defects. Defendant "appeared to be mentally challenged and unable to understand the care instructions for the baby[.]" Defendant also appeared to have anger management issues. The Division did not substantiate defendant for neglect, but had defendant sign a case plan to meet the baby's needs.

Four months later, the Division received another referral after defendant gave the baby to a maternal aunt and said "she was tired of being a mother and left." When the maternal aunt later tried to contact defendant, defendant said, "you keep the baby," and hung up the phone. According to the maternal aunt, defendant "does this on a regular basis." When the Division contacted defendant, defendant admitted leaving the child with her sister, going out for a drink, and refusing to come back for her child. The Division substantiated defendant for neglect and referred defendant for services, including parenting classes, counseling, and a psychological evaluation.

The following month, January 2008, defendant underwent a psychological evaluation. The psychologist, Mark Singer, opined: "While the data does not suggest [defendant] would deliberately harm [her child], the data does clearly suggest that [defendant] requires significant support in order to care for [the child] independently." Defendant's parenting skills classes were suspended after she missed five of them.

In July 2008, the Division received yet another referral after defendant left her then eleven-month-old child outside a relative's home when no one was there. Although defendant claimed to have left the child with her brother-in-law, he denied the allegation. The Division executed a Dodd removal and the court awarded the Division custody of the child.1 The Division placed the child with the child's maternal aunt. The maternal aunt, however, was unwilling to comply with licensing requirements, so the Division placed the child in foster care.

Three months after the Division removed defendant's child, defendant underwent a second psychological evaluation. Dr. Barry Katz reported defendant was defensive and manipulative, had very poor judgment, and had limited insight. The doctor "concluded that [defendant was] unable to care for [her child] at th[at] time" and expressed concerns that defendant's "deficits in parenting are part of a chronic state and may not change in the foreseeable future." Three months later, however, a third psychologist examined defendant and concluded there was "insufficient evidence . . . that there is a psychiatric contraindication for [defendant] to have custody of her child." The doctor found defendant to have no major mental disorder that would cause her to be a threat to the safety and welfare of the child. In December 2009, defendant was reunited with her baby, though the Division maintained care and supervision. Defendant was, at that time, pregnant with her second child.

Defendant's second child was born in March 2010. The following month the Division executed an emergency removal of the children after learning defendant had left them home alone. Although a Family Part judge found the Division had properly executed the removal, the judge denied the Division's application for custody and ordered that the children be returned to defendant and the Division provide extensive in-home services, including a parent aide.

A month after returning the children to defendant, the Division received another referral that the older child had missed a significant number of special-education, self-contained classes. According to information the Division received from the school, the child received "no support from [defendant,]" and the teacher had concerns that the child might be neglected. The Division referred defendant for a psychosocial behavioral assessment and individual therapy. The therapy sessions were cancelled after defendant missed three of the four appointments. Thereafter, defendant underwent a fourth psychological evaluation, the second with Dr. Singer, who opined she "requires additional support if she is to continue to care for her children."

In May 2012, the Division received another report from the older child's teacher concerning the child's frequent absences. The teacher expressed concern that "parent is non-responsive to notices sent home[,]" and expressed concern about the child being neglected. In March 2013, a Family Part judge granted the Division's application to remove the children after determining defendant

has totally neglected to send [the older child] to school resulting in [the child] missing a substantial number of days. As [the older child] receives all her services in school, missing school has caused her to miss those services and, as a result, her educational abilities and behavior have regressed.

The court also cited defendant's inability to provide stable housing for the children and her lack of cooperation with the court-ordered parent aid. The court noted the Division had worked with defendant for five years to help her comply with services and meet the needs of her children. The Division placed the children in a resource home where they have since remained.

Between March 2013 when the Division removed the children from defendant's care, and December 2014 when the guardianship trial began, the Division continued to provide defendant services, including parenting skills, counseling, anger management, a case plan, and psychological evaluations. The Division also provided defendant with transportation assistance and attempted to engage her in vocational rehabilitation, but defendant was non-compliant with the Division's vocational rehabilitation efforts.

During the same period of time, the Division also investigated alternative relative and non-relative resource placements. In November, the Division ruled out defendant's mother as a placement resource because the mother's home did not meet licensing requirements. The Department of Children and Families denied the mother's administrative appeal after learning the mother had pled guilty to a crime, namely, endangering the welfare of a child. The Department of Children and Families ruled out another relative who had "active criminal charges."

Joyce Whitfield was assigned to defendant's case in December 2013, after the Division's case goal for the children changed to adoption. From the time Whitfield was assigned to the case, through the time she testified at the permanency trial, defendant had no stable home address. Defendant was also unemployed during that same period. Defendant received SSI for her cognitive limitations. Defendant once told Whitfield she was staying with relatives, and another time she said she was staying at the location where her mother lived, but that apartment was not in her name. Whitfield testified that, currently, she had no address for defendant and defendant had no phone. Whitfield communicated with defendant only when defendant reached out to her. The last time defendant came to the Division office, she became hostile, cursed at everyone in the office, and threatened them. As a result, a supervisor advised Whitfield to file for a restraining order against defendant.

The Division filed a guardianship complaint on January 17, 2014. During periodic case management conferences that took place between March and November 2014, the court ordered defendant to continue to undergo services, including a drug screen, continued counseling, and neuropsychological and bonding evaluations. The Division continued to offer defendant services, including visitation one time each week. According to Whitfield, when defendant visited the children, sometimes her behavior was appropriate and other times "she was very inappropriate with the children." For example, on one occasion when a child called the resource parent "mommy," defendant became upset and said she would not return to visit again if the child continued to refer to the resource parent as "mother."

On November 6, 2014, the court approved the Division's permanency plan of termination of parental rights and adoption, finding defendant had "failed to remediate the issues that have led to her children being placed into foster care on multiple occasions" and "has been non-compliant with the Division[.]" The guardianship trial began the following month.

In addition to documentary evidence and the testimony of Whitfield, the Division presented two experts, Dr. Frank J. Dyer and Dr. Jonathan H. Mack. The law guardian presented the testimony of Dr. Elaine I. Weitz. The caseworker authenticated records and testified about the Division's involvement with defendant, recounting the facts that we have set forth above.

Whitfield also testified she had the opportunity to observe the children in their resource home on a monthly basis. The older child appeared to have a good relationship with the resource mother, but recently said it was unnecessary to listen to the resource parent because the resource parent was not the real mother. Whitfield characterized the younger child's relationship with the resource mother as a "very good relationship." The resource mother was meeting the children's needs and Whitfield had no concern about her continuing ability to do so. Whitfield opined that in view of the children's special needs, they required permanency and a loving home, which they did not have with defendant. The resource mother was committed to adoption.

The three experts agreed that termination of N.C.G.'s parental rights was in each child's best interest. Dr. Elaine Weitz, a psychologist whose expertise was stipulated, performed a psychological evaluation of N.C.G. and bonding evaluations both of N.C.G. and her children, and the children and their resource parent. Psychological testing revealed defendant had extremely low cognitive abilities, including a receptive vocabulary of a child eight years and six months old. Dr. Weitz expressed concerns about defendant's child abuse potential, as well as about defendant's rigidity and expectations.

The doctor believed the children were still resilient, but explained that resiliency and the ability to adapt decreases the more children are moved around. The children had bonded with their resource parent. Neither child had bonded with N.C.G. in a healthy way and any bond was insecure, because the children did not know if, where, or when defendant was going to be there for them. Dr. Weitz opined the children needed permanency and adoption in the current home, with the current placement parent, was in their best interests. Although terminating defendant's parental rights would cause some harm to the children in the beginning, because they know defendant as "mommy," over time, especially with the care they are getting in their current home, they would recover from that loss. On the other hand, separating the children from their placement parent and returning them to defendant would, in the doctor's opinion, cause more severe and enduring harm that defendant would be unable to ameliorate.

Dr. Frank J. Dyer, whose expertise as a psychologist was also stipulated, agreed with Dr. Weitz. He opined defendant had a narcissistic investment in the children. She saw them as an extension of herself, and was not really attuned to their specific needs. The resource parent, on the other hand, had developed a structured approach to the children's needs.

Dr. Dyer also agreed the children needed permanency. He noted the older child "has had at least three disruptions in the continuity of care," all of which occurred at critical periods of the child's development. Although the older child has a positive emotional connection to her mother, the child had no attachment to her mother. In fact, the child's attachment capacity, according to Dr. Dyer, has been damaged by the disruptions in combination with the child's intellectual handicap and neurological disability. In view of the time the older child had been in the care of the resource mother, Dr. Dyer believed the child had developed a positive emotional connection with the resource parent, but because the child suffered from a reactive attachment disorder, the child had not yet reached the point of developing a true attachment to the resource mother.

Given the older child's psychological status and attachment disorder, Dr. Dyer was of the opinion the child would not suffer harm if defendant's parental rights were terminated. Further, Dr. Dyer was of the opinion the older child would be able to move forward if contact with defendant were terminated.

As to the younger child, Dr. Dyer also viewed the child as lacking resilience, primarily due to two disruptions and intellectual deficits. Dr. Dyer believed the younger child had a positive, emotional connection to defendant, but nothing that could be construed as a genuine attachment.

Dr. Dyer also opined that to the extent the children could do so, they viewed their resource parent as the psychological mother. Dr. Dyer opined the younger child would not suffer harm if defendant's parental rights were terminated. On the other hand, if there were another failed reunion between defendant and her children, their attachment difficulties would be exacerbated and cause considerable additional harm. According to Dr. Dyer, until permanency is established, the children will continue to suffer harm. Dr. Dyer opined the Division should continue to pursue a goal of resource home adoption for both children.

The parties also stipulated to the Division's other expert, Dr. Jonathan Mack, as an expert in the fields of clinical and forensic psychology and neuropsychology with training in child neuropsychology. After interviewing and testing the older child, Dr. Mack diagnosed the older child with mild intellectual disability and attention deficit hyperactive disorder. In addition, the child suffered from language disorders, learning disorders, and difficulty with reading and mathematics. In order to maximize the older child's potential, the child requires an extremely stable and highly structured home environment. The child must consistently participate in services that address her educational and other needs, particularly when developmental windows of opportunity are available.

Dr. Mack also interviewed and tested defendant. The doctor diagnosed defendant with marked neuropsychological dysfunction, including mild intellectual disability with moderate adaptive deficits in the conceptual and practical domains. Defendant had the ability to comprehend spoken language at less than the .02 percentile. Consequently, the doctor was of the opinion that even if significant resources were devoted to training defendant, she would not learn.

Dr. Mack opined defendant suffered from a major neurocognitive disorder due, most likely, to brain damage. Dr. Mack also diagnosed defendant with personality disorder. Dr. Mack concluded defendant was incapable of caring for her children, or for any child. Sooner or later, any child in her care would be at risk.

The trial court considered the Division's proofs and determined the Division proved by clear and convincing evidence termination of defendant's parental rights would be in the children's best interests. Defendant filed this appeal.

Parents have a constitutionally-protected right to raise their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 477 (App. Div. 2012). "Indeed, it is among the most fundamental of all rights." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). Both "[t]he Federal and State Constitutions protect the inviolability of the family unit." L.J.D., supra, 428 N.J. Super. at 477 (quoting In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. 1998), vacated on other grounds, 163 N.J. 158 (2000)).

A parent's right to raise a child, however, is not absolute. It is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." F.M., supra, 211 N.J. at 447. When discharging its parens patriae responsibility to protect children, the State must utilize its "weapon of last resort in the arsenal of state power" termination of parental rights "with caution and care, and only in those circumstances in which proof of parental unfitness is clear." Ibid.

Terminating parental rights must be in the best interests of the child or children. N.J.S.A. 30:4C-15.1(a); F.M., supra, 211 N.J. at 447-48. The "best interests" standard is codified in N.J.S.A. 30:4C-15.1(a), which requires the State to establish the following four elements in order to terminate one's parental rights

(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.

These four elements "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). The State must establish the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

When we review a trial court's findings of fact and application of the statutory criteria to those findings, the scope of our review is limited. F.M., supra, 211 N.J. at 448-49. 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." P.P., supra, 180 N.J. at 511. 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)).

As a general rule, we should also defer to the court's credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Such deference is appropriate because the trial court has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's legal conclusions, however, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant first argues "reversal is warranted because the court erred in finding the child was harmed and that the mother was unwilling and unable to eliminate the harm." Stated differently, defendant asserts the Division failed to clearly and convincingly prove the first two statutory prongs. We disagree.

As to the first statutory prong, the court determined from "a long history" with defendant, she had clearly harmed the children by "the instability, by her inability to recognize their needs and provide services for them." The court determined defendant never recognized the children's special needs. The court also cited the family's instability and the disruption with the older child's caretakers. In short, the court found the children had been harmed by defendant's multiple failures to care for her children, and her inability to care for them physically and emotionally, and by her inability to provide them with stability. The court cited such things as defendant's failure to keep her appointments and to have the older child attend school where the child functioned in a structured environment and was provided with the services he needed to develop in a positive way.

The court's determination was fully supported by the record. Two days after the birth of defendant's first child, hospital personnel observed that defendant appeared to be mentally challenged and unable to understand the care and instructions for her baby. Four months later, defendant gave her child to a maternal aunt, said she was tired of being a mother, and left. When the maternal aunt was able to contact defendant, defendant told her to keep the baby. When the child was eleven months old, defendant left the child outside a relative's home, when no adult was present.

Shortly after the birth of defendant's second child, the Division removed the children after defendant left them alone. Thereafter, defendant failed to have her older child attend the special-education, self-contained classes critical to the child's development. Teachers reported the child received no support from defendant. The harm caused by defendant to both children, through the disruption in their lives and the damage to their development due to lack of permanency, was clearly established through the unrefuted testimony of the experts.

Defendant next contends the Division failed to prove the second statutory prong, namely, she could not eliminate the harm. Defendant asserts she demonstrated parenting ability despite her cognitive limitations. This is simply not so.

Suffice it to say, the pattern of neglect that began shortly after the birth of her first child, and continued through the guardianship trial, was clearly and convincingly established through the testimony of the Division's caseworker and the Division's documentary evidence. In addition, the first psychologist who evaluated defendant in 2008 concluded defendant required significant support in order to care for the older child independently. The Division attempted to provide such support, but defendant was non-compliant. In fact, her parenting skills classes were suspended after she missed five of them. Defendant generally continued thereafter to be non-compliant with the services offered by the Division. Nothing changed between the first psychological evaluation and the guardianship trial. By the time the guardianship trial began, Dr. Mack was firmly convinced defendant was incapable of caring for any child.

Defendant's arguments concerning the third statutory prong, namely, "[t]he parental relationship was a source of permanency," and the Division failed to prove it adequately explored alternatives to termination of parental rights, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Similarly, defendant's argument concerning the fourth statutory prong, that "[t]he court's perception that the children were adrift without ability for attachment does not comport with the record," is unsupported. The Division's experts established through their testimony, based on interviews and psychological testing, the severe problems the children had experienced due to the absence of permanency, including their detachment disorders. Precisely because of the harm caused by defendant's inability to provide permanency to the children, the experts unanimously agreed terminating defendant's parental rights would not do more harm than good. The court's opinion is fully supported by the unrefuted testimony of the experts.

Lastly, defendant argues the trial court's decision should be reversed because her attorney was ineffective. We disagree. Our Supreme Court adopted the Strickland standard2 in parental termination cases to establish Strickland's first prong of ineffectiveness of counsel

(1) counsel's performance must be objectively deficient i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'.

[N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007) (quoting Strickland supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).]

To satisfy this standard,

appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

[Id. at 311.]

Here, defendant fails to explain "why the result would have been different had the lawyer's performance not been deficient." Ibid. She further fails to make the appropriate evidentiary proffer. For example, though arguing trial counsel did not retain an expert, she has not provided a certification proffering an expert opinion regarding her ability to provide care and stability for the children. Moreover, though defendant contends trial counsel failed to cross-examine the Division's caseworker regarding relative placements, the record indicates the Division assessed defendant's relatives and ruled them out, and defendant fails to explain how a different cross-examination tactic would have changed that result. Defendant's "complaints 'merely of matters of trial strategy'" such as whether or not to do a closing argument, are insufficient to support a claim of ineffective assistance of counsel. Fritz, supra, 105 N.J. at 54.

For all the foregoing reasons, we affirm the trial court's termination of parental rights.

Affirmed.

1 A Dodd removal is an emergency removal of a child without a

court order pursuant to N.J.S.A. 9:6-8.29, part of the "the Dodd

Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010).

2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard in New Jersey).