Opinion
DOCKET NO. A-5312-13T1 DOCKET NO. A-5313-13T1
03-30-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.I.M. and M.T., JR., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF V.M., A.J.T., J.T., JR., A.T., JR., C.J.T., and J.I.T., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant M.I.M. (Richard Sparaco, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.T., Jr. (Gregory K. Byrd, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Behm, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-132-14. Joseph E. Krakora, Public Defender, attorney for appellant M.I.M. (Richard Sparaco, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.T., Jr. (Gregory K. Byrd, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Behm, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief). PER CURIAM
Defendants M.I.M. (Molly) and M.T., Jr. (Mario) separately appeal from the June 30, 2014 Family Part judgment terminating their parental rights to their four sons, A.J.T. (Aldo), J.T., Jr. (James), A.T., Jr. (Andrew), and C.J.T. (Charles), and to their daughter, J.I.T. (Jane). The judgment also terminated Molly's parental rights to her oldest son, V.M. (Vito), born to an unidentified father. Molly contends that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence all four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). Mario contends that the Division failed to prove two of the four prongs. The Law Guardian supports the parental termination. Addressing defendants' appeals in a single decision, we affirm.
For purposes of this opinion, we have given fictitious names to the parties.
I.
We incorporate the factual findings in Judge Stephen J. Bernstein's June 30, 2014 oral opinion, and highlight the following.
Between 2005 and 2012, the Division received approximately a dozen abuse and neglect referrals concerning the family, primarily involving allegations of domestic violence and housing instability. The family has lived in New Jersey and New York, and child welfare services in both states were involved in the numerous referrals, most of which were closed as unsubstantiated for lack of evidence. Since 2012, the family has remained in New Jersey.
On April 18, 2012, the New York Administration for Children's Services referred concerns regarding Vito's attendance at the school where he received special education services to the Division. Molly had told the New York school that the family was moving to New Jersey. However, Vito, who was then seven years old, had not been enrolled in school in New Jersey during the two months since he last attended school in New York. The Division confirmed that Vito's educational needs were neglected during this period.
On April 26, Mario called the Division requesting help because Molly "beats the baby, just for crying" and caused bruises by hitting the child with a wire hanger and a belt. Although Mario refused to provide the address of his father's home where the family was staying, the Division located them the next day. Mario confirmed his allegations of abuse and reported that the family was homeless again. Defendants admitted they lacked stable housing, and Molly could not provide an address for proof of residency.
Upon investigating, the Division learned that Andrew, who was twenty months old, was medically neglected. He was delayed in developmental milestones, did not speak or walk, was withdrawn due to limited stimulation, did not have pediatric attention or immunization since July 2011, and had infected lesions that required intravenous antibiotics. He also had "multiple bruises and scratch marks all throughout his body, including his face, calf, chest, and ankles." Molly's claim that the bruises and scratch marks were caused by falls was inconsistent with Andrew's injuries, and it was medically determined that physical abuse and the untreated rash were the "likely" cause. Mario admitted that he witnessed Molly abusing Andrew, and claimed that he did not report the abuse for fear of Division action.
On April 27, the Division conducted an emergency removal of Vito, Aldo, James, and Andrew. The three oldest children were placed in a resource home, and Andrew was immediately admitted to the hospital, where he was diagnosed with severe malnutrition, failure to thrive, a folliculitis rash, iron deficiency anemia, very low body weight, and potential child abuse. It was noted by the hospital staff that Molly had "poor interaction with [the] child" and would tell the staff to change or feed Andrew while she slept.
The Division's pediatric consultant, Raksha Gajarawala, M.D., FAAP, reported that she found developmental delays, extreme malnourishment, bruising near Andrew's right eye, a human bite, anemia, and semi-circle marks on his ankles. Dr. Gajarawala also found that Andrew was only sixty-four percent of the ideal body weight for his age and size, and "had only [two] visits to [the] pediatrician in [twenty] months [when he] should have [had] at least [nine]." Dr. Gajarawala treated Andrew's rash and resultant lesions with intravenous antibiotics. She concluded that defendants had subjected Andrew to prolonged inadequate feeding and that malnutrition had impaired his growth and potentially could cause "long term deficits in [Andrew's] intellectual, social and psychological functioning." She also found that defendants were unable to adequately supervise the children as evidenced by bruising from alleged "falls" and an unexplained human bite mark on Andrew's leg.
On May 1, 2012, the court granted custody, care, and supervision of the children to the Division. On May 3, Andrew was discharged from the hospital after gaining about twenty-two percent of his body weight in less than one week. On May 8, Charles was born. The Division was granted custody, care, and supervision of Charles two days later, and on May 14, he was placed in a Division-approved resource home.
Also in May 2012, the resource parents of the older children expressed concern about Vito's aggressive behavior and requested his removal for the safety of the other children. On May 15, the Division placed Vito in a new resource home, and on May 17, the Division referred Vito to Kid Connection and PerformCare for therapeutic services. The Division caseworker also requested that the New York school, which Vito only actually attended for one month, send his records so he could be enrolled in school in New Jersey.
On July 13, 2012, Leslie A. Trott, Ed.D., conducted psychological evaluations of defendants, who are both hearing impaired. Dr. Trott determined that Molly "lack[ed] the skills needed to investigate" and properly respond to her children's needs, in part because her relationship with Mario "cross[ed] into violence." Dr. Trott opined that both defendants suffered from depression, and she recommended that they enroll in the Access Mental Health Program for Deaf Adults at St. Joseph's Hospital.
Through the Access Program, the Division offered services to defendants in the form of parenting training, individual and group counseling, psychiatric treatment, couple's counseling, and bus passes. However, defendants missed half of the Access sessions, allegedly due to illness or transportation difficulties despite Access's offer of Medicaid transportation. They also missed appointments to move to a new apartment. Consequently, Access reduced their services two months before the trial because Molly missed thirty-one of fifty outpatient appointments and Mario missed thirty of fifty-two.
The Division also arranged for supervised weekly therapeutic visitation at Tri-City People Corporation, where the children also visited with their siblings and were provided mental health, therapeutic, education, and medical services. Defendants only missed four of the fifty-four visits. Tri-City reported that defendants could not provide structure or manage their children's behavior, noting that the children kicked and fought and that Mario "play[ed] very rough" with the children. Tri-City recommended higher care in therapeutic supervised visitation for the family and reported that the children were "unresponsive[]" to defendants' "persistent attempts to redirect problem behaviors."
Various evaluations of the children were conducted. On October 14, 2013, Vito was assessed at Trinitas Regional Medical Center after expressing "suicidal thoughts when he was told he could not participate in gym." He was diagnosed with Attention Deficit Hyperactivity Disorder with a possible learning disorder and Oppositional Defiant Disorder. This led to his participation in the Full-Partial Hospital Program where he would receive "behavior modification, individual, group and family therapy" and would learn "appropriate body boundaries and safe touching" based on two episodes of inappropriate touching of female peers. The program referred him to the Child Study Team at the local school district, where he was assessed and it was determined that he needed special education services and a personal aide in the classroom.
Aldo, age four, was evaluated on September 26, 2012. The report described him as "very physical and violent" when interacting with his siblings and as having "difficulty with following rules." This resulted in a recommendation that Aldo be closely supervised when interacting with other children because of his aggression. The Comprehensive Health Evaluation also revealed communication and gross motor skill delays, and he was referred to a Child Study Team for evaluation.
On August 8, 2012, at age three, James had a Social Work Assessment. He was found to be disruptive and overactive, would hit his classmates, and throw toys and food on the ground. He did not know his colors, shapes, letters, or name. A Comprehensive Health Evaluation on September 26 found his behaviors to be "consistent with a diagnosis of pervasive developmental disorder," and resulted in his referral for a comprehensive developmental assessment and a recommendation for close monitoring when interacting with other children.
Ten months after his removal from the family home, Andrew's Comprehensive Health Evaluation found him to be "of average weight and height," but his fine motor skills and communication were "below the cut off range." The evaluation recommended a behavioral assistant for him at the resource home to thwart the aggressive play that his foster mother reported, and recommended an Early Intervention program evaluation to promote his communication and motor skills.
The court conducted a fact-finding hearing on September 21, 2012. It concluded that defendants medically neglected Andrew, and that "the level of abuse suffered by Andrew . . . was severe." Additionally, the court found that Molly neglected Vito's educational needs by failing to enroll him in school.
Alexander Iofin, M.D., a psychiatrist, examined Molly on February 7, 2013, at the Division's request. Dr. Iofin reported that Molly's "regular day to day difficulties in functioning led to low-grade depression symptomatology [called] Dysthymic Disorder." Molly also displayed maladaptive personality traits, "especially self-defeating personality trait[s] because she continues to repeat the same set of improper decisions and behaviors in both states for a fairly long period of time that led to [the] involvement of child protective services . . . and a transient lifestyle and poor relations with her social support network."
Dr. Iofin concluded that Molly may not be capable of parenting all five children and that "alternative arrangements" might be preferable for the more "compromised" children. Accordingly, he opined that any reunification be considered slowly since the children have a "significant amount of their own problems." He also recommended reassessment in four to six months.
Dr. Iofin evaluated Mario the same day. Like Molly, Dr. Iofin recommended that Mario undergo individual, group, and family therapy. Based on Mario's admission of suicide attempts, aggressive behavior, and history of alcohol abuse, Dr. Iofin further recommended mental health treatment and possibly psychotropic drugs. Dr. Iofin opined that "[a]s long as [Mario] is stable psychiatrically and follows through with the set of recommendations provided," he might be able to reunify gradually with his children.
On April 18, 2013, the court approved the Division's permanency plan of reunification and ordered defendants to comply with therapeutic services and obtain stable housing. However, in late July, the Division received a report from Tri-City that defendants had only attended half the services. On July 30, the court approved the permanency goal of adoption because defendants failed to consistently attend Access services or obtain stable housing.
On September 19, 2013, the Division filed a verified complaint seeking guardianship of the children and termination of defendants' parental rights. Jane was born in October. Defendants offered Jane's paternal aunt, E.L., as a possible placement for Jane. E.L. was contacted and informed the Division that she would get back in touch with the agency after speaking with her husband; however, she failed to do so. When Jane was medically cleared to leave the hospital on October 17, 2013, she too was removed and placed in a resource home.
Thereafter, defendants' struggles continued. In December 2013, it was reported that defendants continued to miss half their Access appointments, continued to miss medication and evaluations, and had made no gains in establishing a home.
On February 26, 2014, the court approved the Division's application to add Jane to the guardianship litigation, citing defendants' failure to comply with services or obtain housing over the two-year period that the Title 9 litigation was pending. In dismissing the Title 9 complaint, the court found that the services would be the same whether offered in a Title 9 or 30 litigation context, and that defendants' due process rights would continue to be protected in the Title 30 litigation. The court rejected defendants' argument that they should be permitted to start anew upon the birth of each child, reasoning that "the facts are the same, the trial is the same, why should we piecemeal every child differently when the same issues are involved."
The one-year report from the Access program dated April 29, 2014, indicated that Molly missed half of her appointments, showed little motivation, blamed others for her inability to follow through, and did not grasp the "gravity of the situation in which she now finds herself." The report further noted that Mario missed half of his appointments and had poor follow through, though he was more mature and focused than Molly.
On May 5, 2014, at a substance abuse assessment, Mario admitted that he had used drugs on four occasions in the past thirty days. He also admitted for the first time that he had four inpatient psychiatric hospitalizations and a pension for psychiatric disability, along with a history of hallucinations and anger problems. He was then referred to Integrity House after testing positive for marijuana.
Prior to the guardianship trial, Division expert Charles S. Hasson, Ph.D. performed psychological and bonding evaluations which led him to recommend termination of defendants' parental rights. Dr. Hasson testified that Molly displayed "total psychological disengagement" during the bonding evaluation and did not "maintain any observation" or monitor the children. Characterizing it as "the most chaotic bonding evaluation I've ever done in my career," he concluded that Molly was "not capable of managing those kids." When Mario entered the room and tried to control the children, they were aggressive with him as well, and it was only when caseworkers intervened that any sort of order was established. Dr. Hasson testified that defendants had no bond with the children and that the children "related to [Mario] as a stranger."
Dr. Hasson emphasized the importance of permanency in children's lives. In his opinion, defendants would be unable to implement skills learned during therapeutic visitation, or provide a nurturing home with the structure necessary for the children to overcome their psychological and behavioral problems and chaotic existence. He found defendants' relationship to be "very tempestuous" which added "gasoline to the fire" making them unable to function together as parents. Consequently, "any child(ren) left in their care would be at high risk for serious neglect and/or emotional and physical abuse." Dr. Hasson concluded that termination of defendants' parental rights would not do more harm than good and that severing the parental relationship would not harm the children.
Dr. Hasson conducted bonding evaluations of Jane and Charles and their respective resource parents, and found their relationships to be "good," especially Jane's relationship with her resource parents with whom she lived since her removal. He noted that Jane "has not been exposed to any attachment-related trauma which has harmed the developmental trajectory of her siblings," thus resulting in "an unscathed, emotionally healthy child."
Although he did not perform bonding evaluations of the other children with their foster parents, Dr. Hasson stated that he was confident they would not be harmed by parental termination because "I can't see how you can have a more negative . . . bonding interaction" and "[i]t can't be any worse, you know, if the Division found someone." He called Vito a lost soul, and indicated that Aldo's out-of-control behavior was triggered by Molly's insensitivity.
Neither defendant testified at the guardianship trial. The only other witness to testify was Division adoption caseworker Joyce Whitfield. She recounted that she had provided transportation for defendants to attend a defense bonding evaluation. However, after only fifteen minutes, the doctor instructed her "to take these kids home [because he] was afraid someone was going to get hurt."
Aldo, James, and Andrew live together with resource parents who wish to adopt James, but are "ambivalent" about adopting the other two boys because of their behavioral difficulties. Whitfield explained that the plan was to place the boys in the select home adoption process, and that sixteen matches existed if they were to be free for adoption and fourteen were currently available without parental termination. She also testified that Jane's resource parents were interested in adopting Aldo. Vito lives with different foster parents who plan to adopt him.
On June 30, 2014, Judge Bernstein issued an oral decision and signed an order terminating Molly's and Mario's parental rights. He carefully reviewed the evidence and presented his findings of fact and conclusions of law in accordance with the best interests test, N.J.S.A. 30:4C-15.1(a). Judge Bernstein found by clear and convincing evidence that the children's best interests support terminating defendants' parental rights and placing them in the Division's guardianship for all purposes including adoption.
Appellate review of a family court's findings is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision is "supported by substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citations and internal quotation marks omitted). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted). Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (citations and internal quotation marks omitted).
III.
The Division must prove by clear and convincing evidence that termination of parental rights is in the best interests of the child. Id. at 447; see N.J.S.A. 30:4C-15(c). The Division must show that:
(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).]
In this case, the four prongs of the best interests test were proven, clearly and convincingly, by compelling evidence as to both Molly and Mario. As to the first prong, the record demonstrates specific instances of harm to the children, including the educational neglect of Vito, and the severe neglect of Andrew which resulted in his hospitalization and delayed development. Additionally, the evidence clearly established that defendants were unable to provide the children with a safe and stable home.
The evaluations conducted by Dr. Hasson, whom the court found credible, provide further evidence of the harm suffered by the children. He concluded that defendants' "very tempestuous" relationship added "gasoline to the fire," rendering them unable to function together as parents, to the children's detriment.
As to the second prong, there is significant evidence to show that both Molly and Mario are unable and unwilling to eliminate the dangers posed to the children. Both defendants missed half their counseling appointments and exhibited poor follow through in implementing lessons learned during those counselling sessions. They also failed to obtain stable housing. Dr. Hasson's bonding evaluations make clear that defendants are unable to remedy the harm their parenting caused the children. As Judge Bernstein correctly determined, "[t]heir lack of cooperation, their lack of compliance, all these things [bode] poorly for any possibility in the immediate future or any future that they will be capable of parenting, individually, or, clearly, as a couple."
New Jersey has a strong public policy recognizing "the paramount need [] children have for permanent and defined parent-child relationships." In re Guardianship of J.C., 129 N.J. 1, 26 (1992); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986) (holding that children have a deep need for a permanent nurturing adult in their lives). Here, Judge Bernstein determined that the children "need permanency. They need stability, particularly, with their behavioral issues. They need some control over their environment." We agree that the evidence sufficiently established that their "need for permanency trumps any limited bond that exists between the parents and the children."
As to the third prong, the record contains clear and convincing evidence to support the judge's finding that that the Division made reasonable efforts to provide services to defendants. The Division made significant efforts to reunify the children with their parents, including extensive counseling and therapy, therapeutic visits with the children, and assistance with transportation. The Division also provided Mario with a substance abuse evaluation and recommendation for treatment.
Molly contends that the Division failed to adequately consider alternatives to termination of her parental rights. Specifically, she alleges that the children's paternal aunt, E.L., was a viable alternative and that E.L. was not adequately considered. However, the record clearly does not support Molly's argument. Rather, the Division did contact E.L., but E.L. advised she had to speak to her husband and never contacted the Division again. Additionally, E.L. refused to provide the Division with her address or any other information beyond her name and telephone number. Defendants were aware of this problem with E.L., yet took no further action to correct it nor did they propose any other resource alternatives.
Finally, the ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).
Here, as noted, the court correctly focused on the children's need for permanency. The judge relied on Dr. Hasson's un-rebutted expert opinion that no healthy bond existed between defendants and the children, and that there would be no harm in terminating defendants' parental rights. The court also found that defendants were unable to remediate the harm they had caused the children. The court concluded that terminating parental rights to free the children for adoption would not do more harm than good. We find ample support in the record that prong four was met.
IV.
Mario separately argues that the trial court prematurely terminated the Title 9 litigation as to the youngest child, Jane, who was born during the proceedings. As a result, defendants only had nine months to establish their fitness to parent Jane before their parental rights were terminated. We disagree.
Initially, we note that the Division is not required to file a Title 9 complaint before filing a guardianship complaint, nor is it obligated to conclude a commenced Title 9 action before bringing an action under N.J.S.A. 30:4C-15.1 to terminate parental rights. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 260-61 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). This is so because "[i]f [the Division] cannot bring a termination proceeding until an abuse or neglect action finally winds its way through the courts, the Legislature's goal of achieving permanency in the placement of children will be frustrated and the child will suffer." Ibid. (first alteration in original) (citation and internal quotation marks omitted).
Moreover, Jane's need for permanency and her best interests are served by terminating defendants' parental rights. At the time of the guardianship trial, defendants failed to demonstrate that they had cured the deficiencies that previously led to the removal of the older children. In fact, Jane's case most strongly supports terminating defendants' parental rights, as she has not experienced the lack of a parental bond, lack of permanency, unstable housing, chaotic home environment, and general harm that her siblings were caused to endure.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION