Opinion
DOCKET NO. A-3277-12T1
02-03-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.L.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.F.S.P., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beth A. Ferlicchi, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, K.F.S.P. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh, Nugent and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-205-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beth A. Ferlicchi, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, K.F.S.P. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
PER CURIAM
S.L.P. appeals from a February 21, 2013 final judgment terminating her parental rights to her child K.F.S.P. (Kevin). She contends that the Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1, and thus the court erred in terminating her parental rights. We disagree and affirm.
We employ a fictitious name to protect the child's privacy.
S.L.P. is a thirty-five year old woman of limited cognitive functioning and an extensive history of mental illness. The record indicates that she first attempted to harm and possibly kill herself when she was six years old. At thirteen, she was admitted to Elizabeth General Medical Center for nearly a month because of "suicidal ideation and feeling depressed." After another long hospital stay she was transferred to Arthur Brisbane Children's Treatment Center "for continued hospitalization and further stabilization" due to her continued hallucinations, "trance like disassociated state," and a lack of response to treatment. S.L.P. was treated at Arthur Brisbane for approximately six months. She was diagnosed with psychotic disorder NOS and mixed developmental delay.
When S.L.P. was eighteen, she was admitted to Newark Beth Israel Medical Center for approximately a month with a diagnosis of major depression with psychotic features, borderline intellectual functioning, and borderline personality traits. The following year she had her first child, a daughter, who has lived with S.L.P.'s mother, C.P. since birth. C.P. advised the Division that S.L.P. has never cared for that child on her own and that S.L.P. is rarely left unsupervised with her daughter.
The Division was not involved in this placement.
S.L.P. had another child, a son, in 2004 when she was twenty-five. Although S.L.P. was reportedly not suffering from any psychiatric symptoms at the time, the Division assumed care and custody of the baby at birth. The boy was never returned to his mother's care, living instead with his maternal aunt, K.N.P. in a Kinship Legal Guardianship (KLG) pursuant to N.J.S.A. 3B:12A-1 to -7. Although there were other hospitalizations and involuntary commitments in the records, the last one appears to have occurred in 2008.
S.L.P. gave birth to the child at issue in this matter, Kevin, on June 24, 2011. She advised the Division that although she had never had custody of her other two children, she wanted to raise Kevin and was thus interested in receiving Division services. S.L.P. informed the caseworker of the father's name but did not know where to locate him. She advised that she had no relationship with the man but only had sex with him for the purpose of getting pregnant. S.L.P. explained that she had been in a relationship with a woman, K.H., for the past eight years and that the two of them planned together for S.L.P. to get pregnant.
The Division never located Kevin's father. His rights were terminated by way of default judgment.
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S.L.P. was not living with K.H. and was without stable housing or employment. K.H. lived with her mother and two children and her home could not accommodate S.L.P. and Kevin. S.L.P. was living temporarily with a cousin, who the week before was involved in a domestic violence incident involving her boyfriend. S.L.P.'s plan was to move in with her sister, S.O.P., who offered herself as a resource for Kevin, although she was unemployed and had a history with the Division.
The Division determined that S.L.P. posed a substantial risk of injury to Kevin's health and welfare because of her lack of housing, employment, and significant psychiatric history and effected an emergency removal pursuant to N.J.S.A. 9:6-8.29 to -8.30. The Division received care and custody of Kevin and placed him in an approved resource home.
The Division arranged an immediate psychological evaluation of S.L.P. with Donna LoBiondo, M.Div., Ph.D and a psychiatric evaluation with Ambrose Mgbako, M.D. Dr. LoBiondo detected no evidence of hallucinations or psychosis but instead found S.L.P.'s speech rational and goal directed. Although testing revealed that S.L.P. had a low IQ, and she achieved low scores on the parenting battery, Dr. LoBiondo concluded that S.L.P. was fit to parent her baby, "on the condition that she enroll in a parenting training course to address parenting deficiencies noted on testing, and that she is closely monitored by the Division for several months after her baby comes home." Dr. Mgbako determined that S.L.P.'s multiple hospitalizations during adolescence were indicative of schizophrenic process or bipolar condition, but that an exact diagnosis was not possible because S.L.P. was then asymptomatic. He recommended that S.L.P. not be reunited with Kevin until she had completed parenting classes.
The Division immediately arranged supervised visitation and arranged for S.L.P. to attend parenting classes. S.L.P. successfully completed parenting classes, attending every session. Her visits were generally positive but her attendance over time became sporadic. Her visitation was eventually suspended after she missed five consecutive visits. Her visitation was reinstated, but suspended again for missing visits. In November 2011, S.L.P. waived her right to a fact-finding hearing and stipulated to the conversion of the case to a guardianship proceeding.
Although the Division placed Kevin in an approved resource home, it sought other placements with S.L.P.'s family and friends. The Division assessed S.L.P.'s sister, S.O.P., but eventually ruled her out after an altercation with S.L.P. at the courthouse and recent criminal charges. While the Division initially assessed S.L.P.'s partner, K.H., it discontinued those efforts when the two were apparently no longer seeing each other. The Division also considered but ruled out S.L.P.'s mother, whom the Division had substantiated abuse and neglect charges against nine times. The Division ruled out S.L.P.'s sister in Pennsylvania because of inadequate housing and an open child protective services matter in that state. The Division assessed at least three other friends or relatives, ruling out each due to lack of interest or criminal history.
In May 2012, the court approved the Division's permanency plan of termination of parental rights followed by adoption. In June, Kevin's resource parent advised the Division that she would be willing to adopt him in the event S.L.P.'s parental rights were terminated. The Division filed its complaint for guardianship on June 7, 2012.
In July, the Division contacted another of S.L.P.'s sisters, K.N.P., as a possible placement for Kevin. K.N.P. was raising S.L.P.'s other son in a KLG arrangement. In August, K.N.P. advised the Division that she was interested in adopting Kevin.
In November, the Division arranged for an updated psychological evaluation with Mark Singer, Ed.D. and an updated psychiatric evaluation with Samiris Sostre, M.D., both of whom testified at trial. The Division also attempted unsuccessfully to arrange for S.L.P. to receive mental health treatment after she moved to Georgia.
During the eighteen months that the matter remained pending, S.L.P. never obtained stable housing or employment. Although S.L.P. testified to the prospect of a job at trial, she was never employed during the pendency of the case. She lived briefly with her sister, S.O.P., but the two argued frequently. At a court hearing four months after Kevin's removal, S.O.P. was speaking with a caseworker in the hallway about family counseling when S.L.P. accused her of lying to the caseworker. S.L.P. began yelling and cursing at her sister and ultimately threatened to kill her. S.L.P. was thereafter without housing for a time. Three months later, S.L.P. was living in South Jersey. Thereafter she lived briefly with her grandmother in a senior citizens' complex before going to another sister's home in Pennsylvania. In July 2012, a year after Kevin's removal and seven months before trial, S.L.P. moved permanently to Georgia to live with her mother. S.L.P. visited Kevin only two times after that.
The case was tried over three days in February 2013. The Division's caseworker testified to the Division's records, its efforts at reunification, and that S.L.P. was not employed and did not have housing to accommodate Kevin, despite living with her mother in Georgia.
Dr. Singer testified to his clinical interview with S.L.P., the results of his examination, and his report to the Division. He reported that S.L.P. told him that she was never in a relationship with Kevin's father, because she "was just making babies to have them." She told Dr. Singer that she was a lesbian, and only had sex with men to have children. S.L.P. also told Dr. Singer that she had a girlfriend of eight months in Georgia, and that she lived with her girlfriend, her daughter T.P., and her mother C.P., but that Kevin could not move into that home with her as her mother was about to move. Dr. Singer also related that S.L.P. told him that she was unemployed but receiving Social Security benefits, which her sister managed for her. S.L.P. informed Dr. Singer that she would get her own apartment, move in with her girlfriend, and that her mother was going to give custody of T.P. back to her. S.L.P. represented that she had cared for her daughter T.P. without her mother's assistance and that "she is left alone for prolonged times with her daughter." In response to his question about what the normal temperature of a child is, S.L.P. responded: "like 70 degrees."
Dr. Singer noted that S.L.P. "has a history of relying on others for housing and continues to do so." He opined that "[e]ngaging in sex with the deliberate design to have children when one is not appropriately equipped to raise a child is suggestive of poor judgment." He noted that her sister's management of S.L.P.'s Social Security benefits "suggests that [she] requires assistance in managing her own life and would have difficulty managing the life of a dependent child." He opined that the fact S.L.P. thought a child's normal temperature was seventy degrees, despite parenting classes, "may reflect her cognitive limitations."
Dr. Singer testified that S.L.P.'s speech was sometimes disorganized during their interview. He explained that disorganized thinking meant that S.L.P. "has difficulty with coherent thought patterns," which is consistent with her mental health history. He also opined that S.L.P. was not aware of her mental health issues, which "suggests that she's not likely to treat those mental health issues in the future."
S.L.P.'s composite IQ score was fifty-nine. Dr. Singer testified that she had "limited cognitive ability that is not likely to be remedied." The type of therapy required would "likely be extremely slow . . . [a]nd in all reality, would not likely result in [S.L.P.] becoming a viable parenting option for [Kevin]." Dr. Singer also testified that S.L.P.'s test data "suggests that [S.L.P.] experiences paranoid ideation" which is "associate[ed] with a thought disturbance." Moreover, S.L.P.'s personality demonstrates that she "is likely to have difficulty acknowledging and responding to the needs of others, including children." This, "[c]ombined with her cognitive limitations," means that "she would have difficulty managing her life in an independent manner, managing children, over time, and responding effectively to the changing demands placed upon her as a parent."
Dr. Singer concluded that S.L.P. lacks the resources needed to parent a child and that "she is not likely to become a viable independent parenting resource for her child in the future." Dr. Singer noted, however, that S.L.P. "may be capable of assisting in parenting a child under close supervision." As to S.L.P.'s relationship with Kevin, Dr. Singer noted that a comparative bonding evaluation was not performed, but that S.L.P.'s contact with Kevin has been "limited and inconsistent." Dr. Singer testified that although he did not personally observe contact between S.L.P. and Kevin, "[h]aving such limited contact would not likely create the situation where there's even a significant familiarity between a young child and [S.L.P.], never mind a meaningful relationship."
Dr. Singer acknowledged that his opinion differed from those of Drs. LoBiondo and Mgbako, both of whom concluded that S.L.P. could parent effectively. Dr. Singer explained:
You know, psychological evaluations are snapshots of . . . people at particular periods of time.
And when you . . . do discuss issues related to thought disorders and affective disorders like depression, those issues don't operate in a linear manner.
You know, at any given point in time, a person could be suffering from depression or suffering from a thought disturbance like a psychotic disturbance . . . [a]nd also at given periods of time, a person may not be . . . psychotic and a person may not feel depressed. So certainly the data . . . that those two professionals obtained is not consistent with . . . the data that I obtained.
Dr. Singer also testified regarding the concept of permanency. He opined that permanency meant "[s]tability, consistency," and that "[i]t's being able to provide a child with a solid, secure foundation from which the child can grow." He concluded that S.L.P. was not, and would not, be in a position to offer Kevin permanency and agreed with the Division's plan for adoption. When asked to elaborate on his conclusion that S.L.P. would not be a viable parenting option for Kevin, Dr. Singer explained that his determination took into account many factors: one, that her "cognitive deficits plac[ed] limitations" on S.L.P.'s "ability to think . . . abstractly" and respond to the "changing demands" raising a child entails; two, her personality traits, encompassing "narcissism, the difficulty . . . responding to the needs of others, the paranoia, the difficulty with trust, being able to trust others, the evidence suggesting a thought disorder at time[s], the historical evidence suggesting psychosis at time[s], meaning a break from reality"; and three, the fact that she "lacks the . . . cognitive capacity and the emotional capacity to provide [Kevin] with a safe, stable home environment." He opined that "[e]ven if there were services in place, the data does not suggest that she'd become a viable minimally sufficient parent in the
Dr. Sostre testified regarding her psychiatric evaluation, which she described as essentially a clinical interview; a review of medical, social, and family history; a review of current symptoms; and a mental status examination, consisting of her objective findings. She opined that S.L.P. did not meet the criteria for schizophrenia. Instead, she diagnosed S.L.P. on Axis I with "[m]ajor depressive disorder" that was "recurrent, severe, with psychotic features — [but] in remission."
This diagnosis, she testified, was based on S.L.P.'s "past history of mental illness" including her hospitalizations for depression, psychotic symptoms, and suicide attempts, as well as a "history of treatment with psychotropic medications." Dr. Sostre explained that S.L.P.'s many hospitalizations made her disorder recurrent, and the nature of her symptoms made it severe. But because S.L.P. reported that she had not experienced symptoms, or received treatment for a period of twelve months when Dr. Sostre interviewed her, her disorder was classified as in remission.
Dr. Sostre also diagnosed S.L.P. as having "[b]orderline [i]ntelligence." Although she did not perform intelligence testing on S.L.P., Dr. Sostre made the diagnosis on the basis of her interview, coming to the conclusion that S.L.P.'s functioning was in the "mild mentally retarded range," consistent with Dr. Singer's IQ test result of fifty-nine.
Dr. Sostre opined that while S.L.P.'s diagnoses by themselves "do[] not exclude a parent from being able to appropriately parent a child," S.L.P. appeared to "have parenting deficit[s] . . . related to enduring patterns of maladaptive behaviors related to cognitive impairments and personality disorder traits." Specifically, she concluded S.L.P. had parenting deficits based on "her cognitive deficiencies," including her prior diagnoses, her inability to work, to manage her own finances, and to live independently.
Dr. Sostre acknowledged the earlier reports from Drs. LoBiondo and Mgbako. She testified that when those doctors wrote their reports, they were focusing on whether S.L.P. had been accurately diagnosed with schizophrenia, and that she agreed with their conclusions that S.L.P. was not schizophrenic. Dr. Sostre, however, did not agree with Dr. Mgbako's conclusion that S.L.P. did not have an Axis I diagnosis and that she did not have cognitive limitations, as Dr. Sostre did not believe this was supported by S.L.P.'s "extensive past psychiatric history with so many hospitalizations." She also did not believe that Dr. LoBiondo's report sufficiently addressed S.L.P.'s cognitive deficiencies and their effect on her ability to parent.
While Dr. Sostre was of the view that S.L.P. should be prescribed anti-depressants to prevent future symptoms of depression, she could not recommend any treatment or therapy for S.L.P.'s cognitive limitations. Dr. Sostre testified that those limitations, which caused S.L.P.'s parenting deficiencies, are "static," meaning "[t]hey're not going to improve." Dr. Sostre explained that while people with cognitive limitations can have parenting limitations addressed or worked around, those deficits would never go away. In such situations, "you would ask a family member to . . . assume more responsibilities." Dr. Sostre opined that S.L.P. "was not functioning in a way where I would see that she was able to function independently, and . . . her ability to care for another life would have been impaired on her own." During cross-examination, Dr. Sostre also asserted that S.L.P.'s cognitive limitations increased the risk of a relapse with regard to her depression, since people with cognitive deficits could not handle stressors as well, and stress increased chances of relapse.
S.L.P. testified in her own behalf. She stated that the only thing the Division had told her she had to do to reunite with Kevin was take parenting classes, which she did. S.L.P. said that if any other type of therapy had been offered to her, she would have participated in it. She also asserted that nobody had told her that she had to go to psychotherapy or take anti-depressants "until recently," but that if she was prescribed such medication, she would have taken it. S.L.P. testified that her plan was to take Kevin home with her, "and be the best mother I can be." S.L.P. contended that she could take care of Kevin by herself because she had taken care of her teenaged daughter, T.P., unsupervised.
S.L.P. testified that she was receiving Social Security benefits, and was about to get a job also. She disclosed that she had been employed before, in a factory in Union, New Jersey, where she packaged makeup kits, and as a babysitter. She described the potential job in Georgia as a "ticket to work" and as "a career job through the state" that enables people to get off Social Security. In response to a question from the court about the job, S.L.P. stated, "I got to get to . . . my papers, because they sent papers . . . like from the organizations. I got to call them and they got to let me know if they going to come and get me so I can — for my ticket that I got to work." S.L.P. testified the available jobs were "computer, technical jobs, stuff like that" and that she was familiar with computers from classes in high school. She could not describe any computer programs that she was familiar with, and indicated that she was only taught how to type and write letters on the computer. She dismissed the notion that her lack of greater facility with computers might pose a problem because the program she was in contact with in Georgia had "all types of job[s] [that] I could do."
The trial judge put his decision on the record at the close of the proofs. After reviewing the established law governing guardianship proceedings, the constitutionally protected rights of parents, and the parens patriae responsibilities of the State, the judge reviewed the testimony in the context of the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1. Although acknowledging that S.L.P. was a "truly blameless individual," the judge nevertheless concluded that the Division had carried its burden of proving clearly and convincingly that Kevin's health and development had been and would continue to be endangered by his relationship with her, and that she could not eliminate the harm and provide a safe and stable home for him. The judge further found that Kevin needed permanency and that delaying his placement would only add to the harm he has already suffered.
The judge found both Dr. Sostre and Dr. Singer "very credible witness[es]." The judge noted that Dr. Singer not only conducted a clinical interview and reviewed S.L.P.'s extensive medical records, but he performed "psychological and intelligence measures," providing him the "unique ability to coordinate each and to demonstrate to the court his opinions by . . . indicating the correlation between the two, and why he drew his correlation from each different facet of the history, clinical interview, and the results of the tests that were performed." The judge concluded that "the testimony of the doctors and their reports indicate that . . . [S.L.P.] has intellectual limitations that impair her ability to use common sense reasoning, make sound decisions, and to exercise good judgment."
The judge acknowledged well-established precedent that the Division's responsibility to demonstrate that the child's health, safety, and development has been or will continue to be endangered by the parental relationship, means that a court need not wait until a child is irreparably harmed by parental neglect before acting to terminate the parent's rights. The court noted that while S.L.P. asserted in her clinical interview with Dr. Singer that she cared for her teenage daughter unsupervised, reports from the Division demonstrated that "there's never a time that she is the custodian or the primary caregiver, and she's never alone with the child." The judge further found after questioning S.L.P. regarding her potential job, "that she doesn't have the abilities to function even in a job that would relate to working on a computer or otherwise." He concluded that S.L.P.'s testimony underscored the experts' views that she does not believe that she has mental health problems and her "belief[] . . . that she is capable or able to do more than she [can]." The judge's assessment of S.L.P. on the basis of her testimony coincided with the opinions of the experts that "S.L.P. has intellectual limitations that impair her ability to use common sense reasoning, make sound decisions, and to exercise good judgment."
The judge concluded that Dr. Singer provided "credible, well-supported testimony as to how he reached the conclusion that placing [Kevin] in [S.L.P.'s] care would expose [him] to a substantial risk of harm, as [S.L.P.'s] mental status makes her unable to parent independently." The judge found that the expert testimony demonstrated "by clear and convincing evidence that [S.L.P.] cannot adequately parent . . . her child, and that [he] is at serious risk of harm in the future." Noting the similarities between this case and New Jersey Division of Youth & Family Services v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002), in which the court found that the parents were sincere in their desire to care for their child and would never intentionally harm him, the judge concluded that S.L.P. would be unable to protect and care for the child on a daily basis because of her cognitive limitations and significant history of mental illness.
The judge also found that "it is extremely important that Kevin have permanency" and that S.L.P.'s cognitive deficiencies "caused harm to the child by failing to provide him with [that] permanency." Acknowledging that S.L.P. "ha[d] been given the opportunity to improve her parenting skills" through classes, the judge noted that she still thought the normal temperature of a child was seventy degrees. The court concluded this fact demonstrated that "no matter what . . . additional services are provided, as good as they may be, they're not able to give her benefit and to increase her parenting skills so that it would be safe to be with a child." Ultimately, the judge found that "[S.L.P.] is not capable of providing the stability and permanency that [Kevin] needs in the future due to the overwhelming evidence of cognitive limitations and the challenges that she faces in her own life."
The judge likewise concluded that the "overwhelming and clear" evidence demonstrated that the Division made reasonable efforts to effectuate reunification thereby satisfying the third prong of the best interests standard. The judge found that the Division had "provided [S.L.P.] with three psychological evaluations, three psychiatric evaluations, parenting skills classes, three family team meetings, two case plans, [and] transportation assistance including transportation to and from Georgia for visitation." The Division also maintained "close contact" with S.L.P. by telephone and "sent regular correspondence."
The judge also noted the Division's efforts to assess numerous relatives as potential placements for Kevin, even though all were eventually ruled out, including S.L.P.'s mother in Georgia. While S.L.P.'s counsel alluded to KLG as an alternative during questioning and in closing arguments, the judge found that "KLG is not a viable alternative if adoption is available," as it was here. Concluding that S.L.P. could not effectively parent Kevin, never had stable housing throughout the litigation, and had not visited Kevin regularly, the court found that "all reasonable alternatives were explored and exhausted" by the Division.
Finally, the judge concluded in assessing the fourth prong that termination of S.L.P.'s rights would not do more harm than good. The court noted that Kevin had both his resource mother and his aunt, K.N.P., committed to adopting him, contrasted with S.L.P., who had "been absent for most, if not all, of Kevin's life" and did not "consistently visit him" when she had the opportunity. The judge found that because there was little or no relationship between Kevin and S.L.P., "the termination of [her] parental rights would certainly not result in greater harm than the good of a permanent relationship with caregivers who will be there for him in the future." Finding that S.L.P. could not provide Kevin with either permanency or a "safe and stable home," the court found that the Division proved by clear and convincing evidence that termination of S.L.P.'s rights would do no more harm than good.
The law governing termination of parental rights is well settled. The standards are codified and set forth in a four-prong test. N.J.S.A. 30:4C-15.1a. Termination is permissible only if the Division presents clear and convincing evidence that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).
(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.
[Ibid.]
Our review of the trial court's application of the facts of the case to these standards is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). 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." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). 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)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted).
Our review of this voluminous record convinces us that no mistake was made and that termination of S.L.P.'s parental rights to Kevin was appropriate. S.L.P.'s contention that the judge misapplied the appropriate legal standards is plainly inaccurate.
S.L.P.'s chief argument on appeal is that the trial court erred by considering only whether S.L.P. could "independently" parent Kevin in considering the first two prongs of the best interests standard. While not disputing Drs. Singer's and Sostre's diagnoses, she argues that they, like the trial judge, erred in focusing on her ability to "independently" parent Kevin. She argues that her plan was to have her mother assume parenting duties for Kevin allowing S.L.P. to assist in raising her son. The record does not support her argument.
In her interview with Dr. Singer, three months before trial, S.L.P. specifically mentioned that Kevin could not live in her mother's home. Her plan, she explained, was to move out of her mother's home and into an apartment of her own. She asserted then that she was capable of caring for Kevin on her own because she was frequently left unsupervised with her teenage daughter. S.L.P. never testified that she planned to live with her mother and raise Kevin with her help, and her counsel never advocated for such an arrangement at trial. In addition, the argument overlooks entirely that the Division had ruled out S.L.P.'s mother as a resource for Kevin because the Division had substantiated abuse and neglect charges against her on nine occasions.
The record further reveals that the Division's experts considered whether S.L.P. could successfully parent Kevin with assistance. Dr. Sostre testified that individuals with cognitive limitations can function with help and support. Dr. Singer opined that S.L.P. might be able to parent with close supervision. Unfortunately, the sort of support and supervision necessary for S.L.P. to parent was simply not present in her life. S.L.P. lived in five different places and was homeless for some time during the eighteen months that the case was pending in the trial court. The Division considered and ruled out several relatives and friends to serve as resources for Kevin, all for sound reasons.
S.L.P. has untreated mental illness and significant cognitive limitations that, through no fault of her own, present a risk to Kevin. The experts' uncontroverted testimony is that she cannot parent him independently and there was no evidence presented from which the judge could conclude that she had the support necessary to allow her to parent him with the supervision and assistance of someone else. Accordingly, the trial judge correctly applied the legal standards to the established facts of record in concluding that the Division carried its burden on the first two prongs. A.G., supra, 344 N.J. Super. at 440 (explaining that the test is not whether the parents have or would intentionally harm the child but rather whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm).
We likewise reject S.L.P.'s argument that the Division's efforts were insufficient to satisfy its obligations under the third prong. She argues that the services the Division provided and on which the trial court relied were not services aimed at reunification. We disagree.
The third prong of the best interests standard requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). Whether the Division has fulfilled this obligation is examined "on a case-by-case basis," and the "diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., supra, 161 N.J. at 391, 393. The trial court's finding that the Division produced "overwhelming and clear" evidence of its reasonable efforts under the third prong is amply supported by the record. In addition to the parenting classes, S.L.P. acknowledges that the Division arranged visitation, evaluations, family team meetings, transportation assistance, including assistance for transportation to and from Georgia, and diligently searched for relative placements for Kevin. Moreover, the unrebutted expert testimony supported the judge's finding that additional services "as good as they may be" would not succeed in making S.L.P. an adequate parent. In re Guardianship of D.N., 190 N.J. Super. 648, 654 (J. & D.R. Ct. 1983) (finding no obligation of the Division to provide an unreasonable level of services to parents who lack emotional and intellectual resources required for parenting).
Finally, we reject S.L.P.'s argument that the Division's failure to undertake comparative bonding evaluations between S.L.P. and Kevin, and between Kevin and his aunt K.N.P. undermines the trial court's ultimate finding that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4).
Although we have held that comparative bonding evaluations are "of great significance in evaluating comparative harm under the fourth prong" and that there are "very few scenarios in which comparative evaluations would not be required," N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), we are of the view that this case presents one such example. S.L.P. never had custody of Kevin. He went from the hospital to his resource home where he remained for nineteen months. Although S.L.P. had visitation, her attendance became sporadic and ended (but for two visits) when she moved to Georgia when Kevin was a year old. Dr. Singer noted that S.L.P.'s contact with Kevin was limited and inconsistent and testified that "[h]aving such limited contact would not likely create the situation where there's even a significant familiarity between a young child and [S.L.P.], never mind a meaningful relationship."
Kevin's aunt, K.N.P., who already has custody of Kevin's older brother pursuant to a KLG, advised the Division in August 2012 that she was interested in adopting Kevin. Visitation was begun between them in November 2012, but Kevin was not transferred to her care until after trial the following February. Accordingly, it is likely that there would have been little utility in a bonding evaluation of K.N.P. and Kevin given that timing.
The trial judge concluded "[s]ince there is little or no relationship with [Kevin] and his natural parents, the termination of their parental rights would certainly not result in any greater harm than the good of a permanent relationship with caregivers who will be there for him in the future." Because the evidence amply supports this finding and the trial judge's decision that termination of parental rights is in the best interests of Kevin, we affirm the judgment. See P.P., supra, 180 N.J. at 511.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION