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

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NOT FOR PUBLICATION WITHOUT THE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.

S.S.W.,

Defendant-Appellant,

and

M.S. (deceased) and D.C.,

Defendants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.A.S. AND M.K.W., minors.

___________________________________

January 30, 2017

Submitted January 18, 2017 Decided

 
Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-225-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Grace Eisenberg, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Khari A. Edwards, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Randi Mandelbaum, Designated Counsel, on the brief).

PER CURIAM

S.S.W. appeals from a February 3, 2016 Family Part order terminating her parental rights to K.A.S., born in August 2006, and M.K.W., born in April 2012. We affirm.

S.S.W. is the biological mother of K.A.S. and M.K.W.1 S.S.W. has a long history with the Division of Child Protection and Permanency (Division). This is the second time that K.A.S. has been removed from her care. S.S.W. repeatedly left her children with inappropriate or no adult supervision, has behavioral issues, and has not been able to maintain safe and stable housing. The Division conducted a Dodd2 removal, obtained court approval, and placed K.A.S. and M.K.W. with their maternal great-aunt, R.F.

The record supports the judge's finding that the Division presented clear and convincing evidence establishing the four prongs of the best interests test in N.J.S.A. 30:4C-15.1(a). R.F. wishes to adopt K.A.S. and M.K.W., who havebeen thriving and living with her for over three years.

The guardianship trial began in January 2016. The Division produced testimony from expert Frank Dyer, Ph.D. and two Division workers. Alice Nadelman, Ph.D. testified on behalf of the Law Guardian. S.S.W. testified on her own behalf. We discern the following facts from evidence adduced at the trial.

In December 2006, the Division received a referral indicating that seventeen-year-old S.S.W. was often drunk while caring for her newborn baby K.A.S. The Division investigated but did not substantiate a neglect finding. In October 2007, the court granted the Division care and supervision of K.A.S., and in April 2008, the court granted the Division custody of K.A.S. after S.S.W. failed to maintain stable housing. K.A.S. remained in Division custody with a resource home for over three years until June 2011, when K.A.S. was reunified with S.S.W. In April 2012, the Division closed the case.

In July 2013, the Irvington N.J. police department contacted the Division to report that S.S.W. left K.A.S., then six-years-old, and M.K.W., then one-year-old, home alone. K.A.S. told the officer that S.S.W. had left them approximately two hours earlier with the upstairs neighbor, J.M. K.A.S. said that after an hour, J.M. handed K.A.S. her one-year-old brother M.K.W. and left. The officer noted that J.M., who had come back home, appeared heavily intoxicated. Someone called S.S.W. and she came home, telling the officer she had only been gone for three minutes. The Division did not find that S.S.W. neglected the children.

In July 2013, S.S.W. signed a family agreement with the Division, agreeing to provide the Division with proof of income, clean her apartment, remove paint chips from the walls and ceiling, and follow up with welfare regarding her benefits and temporary rental assistance. The Division found that S.S.W. did not comply with the agreement. In August 2013, the court awarded the Division care and supervision of K.A.S. and M.K.W. S.S.W. did not appear at the hearing.

On September 12, 2013, at approximately 1:15 p.m., the Division performed a random check at S.S.W.'s apartment. The two Division workers found seven-year-old K.A.S. home alone in the apartment. The Division workers described the apartment as "deplorable." K.A.S. was not wearing clean clothes, she appeared "unkempt," "her hair was not groomed," and she had bumps on her skin and an "unpleasant smell." The apartment had garbage on the floors, spoiled food on the stove top, and a soiled diaper in the sink. There was little or no furniture throughout the apartment and it appeared that the family was sleeping on a partially inflated air mattress.

When the worker asked K.A.S. who was supervising her, she said "no one." When the worker asked K.A.S. how long she had been home alone, she said "a while" and when asked what she was doing, K.A.S. said she was watching the Smurfs movie and it came off and back on three times. The movie is an hour and forty-three minutes long. K.A.S. said she was not scared to be home alone because she was home alone often. When asked why she was not in school, K.A.S. said she does not go to school. K.A.S. indicated that she ate "something small" in the morning and was hungry. The Division workers removed K.A.S. from the home.

S.S.W. claimed she left K.A.S. with someone named Ed watching her. K.A.S. said that no man named Ed was watching her. S.S.W. identified Ed as a paternal relative, but could not provide his full name. When workers called Ed, he refused to meet them and stated he did not want to return to jail. S.S.W. claimed she was gone for only ten minutes, even though the workers were with K.A.S. in the apartment for at least thirty minutes. S.S.W. told the workers that M.K.W. was at his paternal grandfather's house; however, when workers went to retrieve him, he was not there. S.S.W. did not produce M.K.W. until an emergent hearing the next day.

On December 9, 2013, the court held a fact-finding hearing and found that the Division met its burden to prove abuse or neglect by a preponderance of the evidence. In the order, the judge noted that S.S.W. "failed to follow the terms of the family agreement that she had signed with the Division in July 2013 thereby placing her two minor child[ren] at substantial and imminent risk of harm."3

In November 2013, the children were placed with their maternal great-aunt, R.F. Initially, R.F. allowed S.S.W. liberal visitation at her home, but then received a restraining order against S.S.W. in February 2014 after an altercation.

On November 4, 2013, S.S.W. attended a psychological evaluation with Dr. Briana Cox. Dr. Cox found S.S.W. became angry at times, laughed inappropriately and could not explain why, had difficulty maintaining boundaries, and had poor insight and judgment. Dr. Cox recommended S.S.W. obtain housing and employment help, substance abuse evaluations, parenting classes, individual therapy, and a psychiatric consultation.

The Division referred S.S.W. to a certified alcohol and drug counselor (CADC) for a substance abuse evaluation, to Tri City for supervised visitation, and to WISE Women's Center for parenting skills. In February 2014, S.S.W. had a psychiatric evaluation and the doctor described her as immature, na ve, and with very poor adult coping skills. The doctor recommended parenting classes and counseling. The Division recommended S.S.W. for individual counseling and she completed this program in March 2015.

In June 2014, S.S.W. completed the eight-week parenting skills program at the WISE Women's Center. S.S.W. missed several substance abuse evaluation appointments. In June 2014, she went to the evaluation and the evaluator did not have any recommendations for substance abuse treatment. Also in June 2014, S.S.W. began weekly visitations with her children at the Division office.

The children have special needs. A pediatric neurologist saw M.K.W. and diagnosed him with cerebral palsy. He receives speech and physical therapy. S.S.W. missed two previous neurologist appointments scheduled for him when he was in her care. In November 2013, K.A.S. was diagnosed with Adjustment Disorder, not otherwise specified. She received intensive counseling services to address her "oppositional/defiant behavior, impulsivity, and hyperactivity as well as to improve her anger control." K.A.S. has an individualized education program. A Division worker testified that R.F. is capable of handling the children's special needs.

On February 9, 2015, the court approved the Division's plan to terminate parental rights followed by adoption. The court found S.S.W. was not compliant with services and had inconsistent attendance at counseling. On April 6, 2015, the Division filed a guardianship complaint.

In August 2015, S.S.W. met with the Law Guardian's expert, Dr. Nadelman. Dr. Nadelman's analysis indicated obsessive compulsive personality disorder with avoidant personality traits, schizoid personality features, and paranoid personality features. Dr. Nadelman found S.S.W. showed inappropriate expectations of behavior and did not "demonstrate the psychological capacity to provide safe and appropriate parental care for either of her children."

Dr. Nadelman met with K.A.S. who told her that R.F. is the one who cares for her, S.S.W. did not take care of her, and it would be "okay" to stay with R.F. Dr. Nadelman observed S.S.W. and K.A.S. become argumentative with each other and K.A.S. began banging her head against a wall. Dr. Nadelman noted K.A.S. and M.K.W. both seemed to interact lovingly and appropriately with R.F. Dr. Nadelman testified that she supported the Division's plan of adoption and noted that S.S.W. did not take responsibility for her actions, continued to have conflicts with K.A.S., and did not have stable housing, employment, or education.

In October 2015, S.S.W. attended a psychological evaluation with the Division's expert, Dr. Dyer. The trial court found his testimony credible. Dr. Dyer reported that S.S.W. was an "emotionally immature, aggressive, and egocentric young woman who is capable of presenting appropriately when she believes the circumstances warrant it." Dr. Dyer found S.S.W. demonstrated symptoms of a mood disorder. S.S.W. indicated she did not have stable housing and she could not tell Dr. Dyer any way that counseling had helped her.

Dr. Dyer also performed a bonding evaluation with the children and S.S.W. Dr. Dyer described S.S.W. as affectionate with M.K.W. Dr. Dyer found that S.S.W.'s intellectual capacity was low average, S.S.W. did not appear to benefit from counseling, and K.A.S. may regress if reunified with S.S.W. Dr. Dyer also performed a bonding evaluation between the children and R.F. and found the children had "formed a positive connection and attachment to [R.F.]" and he recommended the children stay with R.F. Dr. Dyer found K.A.S. has a residual attachment to S.S.W. "characterized by a good deal of conflict and ambivalence."

Two Division workers testified at trial that getting S.S.W. to comply with services was "difficult," S.S.W. did not have stable employment or housing, and she was discharged from individual therapy for noncompliance. The court found these Division workers to be credible. One of the workers also testified that S.S.W. acted inappropriately at visits with the children and K.A.S. cried during visits.

S.S.W. testified she had a new apartment where the children would live if reunified with her and she planned to place them in daycare while she worked. The court did not admit S.S.W.'s lease or letter from her landlord because they had conflicting rental amounts and neither was signed. The court did not find S.S.W.'s testimony credible because of inconsistencies.

The judge rendered an oral opinion. He found that the Division satisfied its burden of producing clear and convincing evidence to prove all prongs of the best interests of the child standard. On appeal, S.S.W. argues that the record does not support the trial court's conclusion. We disagree and affirm.

Parents have a constitutionally protected right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Id. at 347. The best interests standard, initially formulated by the Court in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following criteria by clear and convincing evidence before parental rights may be severed

(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 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.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

The four criteria are not discreet and separate, but overlap to provide a comprehensive standard to identify a child's best interests. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). The statute's four parts "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances present in each case. Ibid. (citation omitted). Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J.494, 506 (2004).

The scope of our review of a determination terminating a parent's rights is limited. "When a biological parent resists termination of his or her parental rights, the [trial] court's function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and 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. 2006), certif. denied, 190 N.J. 257 (2007).

The factual findings which undergird such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." R.L., supra, 388 N.J. Super. at 89.

Applying these standards, we conclude that there is sufficient credible evidence in the record to support the judge's findings as to all four prongs of the best interests test.

The first two prongs of the best interests test address the harm caused to a child and a parent's failure to mitigate that harm. N.J.S.A. 30:4C-15.1(a)(1) and (2). The focus of the first prong examines the impact of harm caused by the parent-child relationship on the child's safety, health, and development over time. P.P., supra, 180 N.J. at 506. The harm facing the child "need not be physical . . . . Serious and lasting emotional or psychological harm to [a] child[] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, a "parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting . . . ." Ibid.

The second prong relates to "parental unfitness" and can be established by "demonstrat[ing] that the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development [or] demonstrat[ing that] the parent has failed to provide a 'safe and stable home for the child' and a 'delay in 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)).

As to the first prong, the court found "a continued parental relationship will lead to physical and/or psychological harm resulting to [K.A.S.] and [M.K.W.]. Unfortunately, there's been a pattern of leaving the children without proper supervision, an inability to provide and/or maintain stable housing, [and an] inability to meet the emotional and psychological needs of the children." The judge found the Division met the second prong, stating S.S.W. "has shown an inability to address housing issues and shown an unwillingness to accept responsibility for any issues that led to removal [and has demonstrated] a poor prognosis to eliminate future harm to her children." We agree with the judge's analysis.

S.S.W. left the children with an inappropriate caregiver before, who was intoxicated and left the small children. When the Division workers found K.A.S. alone for a second time, she was unkempt, ungroomed, and hungry. She had watched a 103-minute video three times, indicating she was alone for five to six hours. She indicated to Division workers that her mother had left her alone many times before, and that was why she was not scared. Furthermore, she was seven-years-old at the time and should have been in school.

By not adhering to the family agreement, S.S.W. let her children live in deplorable conditions. There was garbage on the floors and paint chips peeling from the walls and the ceiling. She put a soiled diaper in their kitchen sink. There was no hot water in the apartment. Also, she missed two neurologist appointments for M.K.W. before he was put in Division custody. The Division brought him to a doctor who diagnosed him with cerebral palsy. S.S.W. testified she missed the appointments because they had lost their housing, which confirms how their unstable housing could affect the children's health. S.S.W. was unable to show she had a safe and stable home for her children at trial. The experts testified that S.S.W. has behavioral issues, acted inappropriately towards the children, did not take responsibility for her actions, and did not have the skills necessary to care for them.

As to prong three, N.J.S.A. 30:4C-15.1(a)(3) requires, in pertinent part, the Division to prove by clear and convincing evidence that it "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." The third prong requires that the Division "undertake diligent efforts to reunite the family." K.H.O., supra, 161 N.J. at 354. According to the statute,

"reasonable efforts" mean attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development, and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c)(1)-(4).]

Whether the Division undertook diligent efforts to reunite the parent with the child is a fact-sensitive, individualized inquiry. D.M.H., supra, 161 N.J. at 390.

The judge found that the Division provided defendant with "psychological and bonding evaluations, psychological assessments, CADC assessments, parenting skills assessments, individual counseling, transportation, family team meetings, psychiatric evaluations, and supervised visitation as well as therapeutic visitation." The Division also contacted and investigated other family members before placing the children. The Division workers testified that getting S.S.W. to comply with services was difficult.

Although S.S.W. completed programs such as the parenting skills classes and CADC evaluations successfully, an expert testified that S.S.W. did not make significant progress from the services provided. A Division worker testified that S.S.W. was discharged from individual therapy for noncompliance. The Division made a family agreement with S.S.W. when the children were still in her custody, but she refused to comply and make her apartment safe for her children. The record supports the trial court's finding that the Division made reasonable efforts to provide S.S.W. with services to correct the circumstances that led to the children's placement.

There is clear and convincing evidence that the Division also satisfied its burden under N.J.S.A. 30:4C-15.1(a)(4). N.J.S.A. 30:4C-15.1(a)(4) "requires a determination that termination of parental [31] rights will not do more harm than good to the child[ren]." K.H.O., supra, 161 N.J. at 354-55. "A child's need for permanency is an important consideration under the fourth prong." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). It is well-established that to satisfy this prong, the State should present a "'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with . . . the natural parents . . . ." Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992)).

Here, K.A.S. and M.K.W. are thriving with their great-aunt R.F. R.F. shows a strong interest in adopting them and in helping them with their special needs. Two experts testified in the hearings. The experts found conflict between S.S.W. and K.A.S. The court recognized the harm the children would suffer if separated from R.F., who they have lived with since late 2013.

The judge stated that the fourth prong was proven because K.A.S. and M.K.W. would "suffer a greater harm from the termination of their relationship with their resource parent, [than] they would from the termination of their relationship with the biological parent" and cited the testimony of experts and Division workers. The experts testified that K.A.S. and M.K.W. require permanency and stability, and Dr. Dyer stressed that the children require permanency and stability because of their special needs. There was clear and convincing evidence to find that terminating S.S.W.'s parental rights would not cause more harm than good.

Affirmed.

1 K.A.S.'s father (M.S.) is deceased. M.K.W.'s father (D.C.) was incarcerated for a significant period of his life and on February 3, 2016, the court entered a default order terminating D.C.'s parental rights. D.C. has not appealed.

2 A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.

3 S.S.W. appealed this finding and we have affirmed that finding in a separate opinion. N.J. Div. of Child Prot. and Permanency v. S.W., No. A-04264-14.