Opinion
DOCKET NO. A-4099-13T4 DOCKET NO. A-4100-13T4 DOCKET NO. A-4101-13T4 DOCKET NO. A-4102-13T4
03-04-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.S. and D.F., Defendant-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF C.M.F., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant S.S. (Anthony J. Vecchio, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.F. (Dianne Glenn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.M.F. (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket Nos. FG-11-22-14 and FN-11-50-13. Joseph E. Krakora, Public Defender, attorney for appellant S.S. (Anthony J. Vecchio, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.F. (Dianne Glenn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.M.F. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
In these back-to-back appeals, defendants S.S. (Sandy) and D.F. (Dan) appeal from a guardianship judgment and order terminating their parental rights to their now two-and-one-half year old daughter, C.M.F. (Cathy). Dan also appeals from an order that found he abused and neglected Cathy.
We have fictionalized the names of the parties.
Sandy filed an appeal from the Family Part's April 16, 2014 guardianship judgment in the parties' Title 30 action (A-4099-13), which we consolidated with her appeal from the court's December 12, 2012 fact finding order in their Title 9 matter (A-4100-13). Dan also filed one appeal from the guardianship judgment (A-4101-13) and a separate appeal from the fact-finding order (A-4102-13), which we also consolidated.
In his appeal from the Title 9 action, Dan argues he could not have neglected Cathy because she was never in his custody as she was placed with a resource family immediately after she was born. He also asserts the judge improperly relied on his use of marijuana as a reason for finding abuse and neglect. In their appeals from the guardianship judgments, Dan and Sandy challenge the sufficiency of the New Jersey Division of Child Protection and Permanency's (Division) proofs under the best interests test, defined in N.J.S.A. 30:4C-15.1(a). The Division and Law Guardian disagree and argue there was sufficient evidence to sustain the court's finding of abuse and neglect and all four prongs of the best interests test were met by clear and convincing evidence. Finally, Sandy argues the termination of her parental rights violates the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to -12213.
N.J.S.A. 9:6-8.21 to -8.73
Sandy's appeal forces this court to confront a tragic case requiring us to decide whether the Family Part properly terminated the parental rights of a parent who suffers from a life threatening, debilitating disease. "The determination of an application to terminate parental rights" is typically an "agonizing burden posing an almost unsolvable dilemma to our judicial system." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 120 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 180 N.J. 456 (2004). As painful as these disputes are typically and in particular here, they must turn on effectuating a determination of the best interest of a child, a child's need for protection and permanency, and must not be skewed by the sympathy for the blamelessness of a parent facing circumstances he or she has not caused. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001), cert. denied, 171 N.J. 44 (2002). From that perspective, we considered the parties' arguments after carefully reviewing the record and applicable law. We affirm.
I.
The facts regarding the Division's involvement with Sandy and Dan, its attempts towards reunification and alternative placement for Cathy are set forth at length in the Family Part judges' oral decisions and need not be repeated here. We recite only the salient facts pertinent to our decision.
Six years prior to giving birth to Cathy, Sandy was diagnosed with Huntington's disease. Prior to her illness, she led a fairly successful life until she was involved in an automobile accident and later diagnosed with the disease. At the time of Cathy's birth, Sandy's symptoms were getting worse, she was not being treated for her health issues and she had a life expectancy of ten years. As a result, she did not work and relied on social security disability benefits and Dan for support. Dan worked part-time when called by a temporary employment agency. He regularly drank alcohol and smoked marijuana. His criminal history included a conviction for child endangerment arising from the death of one of his other children with a different mother, who died in his custody as a result of physical abuse. Dan and Sandy lived together in a rooming house, which was in deplorable condition, infested with cockroaches and other insects and without a bed or other provisions.
Huntington's disease or Huntington's chorea is "an abnormal hereditary condition (autosomal dominant disease) characterized by progressive chorea (involuntary rapid, jerky motions) and mental deterioration, leading to dementia. Symptoms usually first appear in the third or fourth decade of life and progress to death, often within fifteen years." Dictionary of Medical Terms 267 (4th ed. 2000).
The room was on the second floor of a home in which five other people shared the bathroom and kitchen. The hospital report indicated Sandy had previously been "admitted to the hospital for lice and during those times complained [] she did not have any food." For that reason, she asked a hospital worker for help securing housing since she wanted to move before giving birth.
When Cathy was born, Dan and Sandy did not have a plan to care for Cathy once she was discharged. Besides a car seat, Sandy admitted she did not have baby items because Cathy was born two weeks early. When Sandy arrived at the hospital to deliver Cathy, she "was covered in feces and lice and . . . had to be cleaned and de-liced before she could deliver." She told a nurse the last time she bathed was the previous week when she was also admitted to the hospital and did not want to go home with Cathy to the room.
The next day, a hospital worker reported Cathy's birth to the Division out of concern for Sandy's inability to care for herself or her newborn child. The worker also stated Dan was "filthy" and lacked money or transportation to get to the hospital. When he eventually arrived, he brought a car seat, which was "extremely old," "dirty" and likely unusable.
However, Dan later bought a bassinet, a new car seat, clothes, diapers, wipes and baby shampoo for Cathy. He also had a stroller and bought two space heaters in case the heat did not work in their room.
In response to the hospital's report, a "hospital hold was placed on Cathy." The Division investigated the hospital's report and confirmed Sandy was unable to care for Cathy because of her disability and the parents' residence was totally inadequate and dangerous for a baby. As a result, the Division filed a Title 9 complaint and applied for care and custody of Cathy. Judge William Anklowitz granted the Division custody of Cathy based upon his findings Sandy was not able to care for Cathy and the room Dan and Sandy shared posed dangers for a newborn. In addition, the judge's conclusion was based upon Dan's prior involvement with the Division and his subsequent conviction which called into question his ability to care for the child.
A hospital hold means that the child cannot be released to the parent's custody even if the child is medically ready for discharge. See N.J.S.A. 9:6-8.16.
The court conducted a "fact-finding" hearing on December 12, 2012. Sandy appeared with counsel but Dan did not appear, although he was represented by counsel. As agreed by counsel, the court considered the documents offered by the Division without objection and conducted a summary hearing on the papers, without testimony. Judge Anklowitz did not find Sandy neglected or harmed Cathy. Rather, he determined she and Cathy needed Division services because she was unable to parent as a result of her disease. The judge found Dan neglected Cathy by exposing her to a substantial risk of harm by failing to make arrangements for the child's care, knowing that Sandy could not help and by maintaining a totally unsafe and unhealthy environment for the child once discharged from the hospital. Judge Anklowitz also relied upon Dan's use of marijuana with others in his room. As a result, the court continued the Division's custody and care for Cathy since there were no signs Sandy "was going to get any better" and Dan had yet to attend any psychological or substance abuse evaluations.
N.J.S.A. 9:6-8.44.
The Division offered numerous services to both parents. These services included arranging for visits, parenting classes, housing and furnishing assistance, psychological evaluations, substance abuse counseling and others. The Division also offered to transport Sandy for medical appointments, but she would never schedule them.
As to their participation in visitation, Sandy was consistent in attending visits with Cathy. Dan initially complied, but eventually stopped attending. Over time, however, Sandy's attendance decreased as her condition worsened. She last visited Cathy at her first birthday party in September 2013.
During attended visitations, the Division's worker observed the parents interacted well with Cathy. Because Sandy was unable to pick up or walk with her daughter, workers "literally put [Cathy] in her arm[s] for her to hold her." Over the course of Sandy's visits, she lost a substantial amount of weight, her hand involuntarily shook more, her hygiene declined and her gait worsened. However, Sandy managed to relocate, improve her living environment and respond positively to services offered by the Division. None of the services could, however, help Sandy overcome impediments caused by her disease to independently care for Cathy.
Sandy told Division workers she planned on caring for Cathy with Dan. Dan, however, said he was not interested in remaining with Sandy. He obtained his own apartment and eventually his whereabouts became unknown to Sandy and the Division.
Dan's participation in services offered by the Division aimed towards reunification also declined. Despite initially attending counseling and parenting classes, he later failed to participate in these services or attend any of the three separate psychological evaluations arranged by the Division. Dan was not interested in substance abuse treatment and told a Division worker "he wasn't ready to stop smoking weed yet." Dan also failed to appear for court hearings and family team meetings during the litigation. Eventually, the Division lost contact with him.
In addition to providing services, the Division investigated relatives and friends as possible placements for Cathy. The Division ruled out each person either because they were ineligible due to their criminal history, were not interested or could not be located. No one ever appealed the Division's decision ruling out any suggested individual.
As noted, the Division arranged for both parents to undergo various evaluations. Dan failed to appear for any evaluation. Sandy participated in evaluations by a psychologist, psychiatrist and neurologist. All three professionals felt Sandy was highly motivated to parent, but no expert recommended parenting by Sandy now or in the foreseeable future due to her debilitating disease and its effects. None of their opinions were refuted.
In October 2013, the court approved the Division's plan to terminate parental rights followed by foster home adoption. Pursuant to the approved permanency plan, the Division filed a guardianship complaint in December 2013, seeking the termination of both parents' rights and to place Cathy in the Division's custody to secure her adoption. Judge Audrey P. Blackburn presided over the guardianship trial in March 2014. Dan did not appear but was represented by counsel. Sandy appeared with counsel and briefly testified. She told the court she believed she had parenting experience while having custody of her brother and believed she could parent Cathy if assisted. Sandy described Cathy's resource mother as a blessing, but believed terminating her own parental rights would be harmful since Sandy had bonded with Cathy. The other witnesses who testified at trial were Division representatives, an expert who prepared a bonding evaluation and Cathy's resource mother.
Before her accident, Sandy had custody of her half-brother after their parents died. Once she was no longer able to care for him, he relocated to his paternal grandparent's home in Florida.
Jamie Gordon-Karp, Psy.D., conducted the bonding evaluation for the Division and testified neither Sandy nor Dan appeared for scheduled evaluations. The doctor testified about the bonding evaluation she conducted between Cathy and her resource mother, when Cathy was eighteen months old. The doctor concluded Cathy viewed her resource mother as her "psychological parent" and, if Cathy were removed from her care, Cathy was "likely to suffer grief reactions involving severe and enduring harm that would consist initially of acting out behavior, depression, temper tantrums and generalized anxiety," which could affect Cathy's later social relationships and ability to deal with disappointment. She also opined delaying Cathy's permanency would only cause further harm to her.
Cathy's resource mother, a retired kindergarten teacher, who wants to adopt her, testified Cathy had been in her care since she was five days old. She confirmed Sandy would visit Cathy for two or three hours once a week, but eventually stopped coming. She sent pictures to Sandy and intended to continue doing so and allow Sandy to continue visits with Cathy were she permitted to adopt Cathy. However, this invitation was not extended to Dan because the resource mother had never met Dan, "heard a lot of negative things about him" and did not want him in her home.
II.
In her decision, Judge Blackburn observed Dan "failed to comply with services offered to him" and that his whereabouts were unknown. The judge conducted a "best interests of the child" test by analyzing the Division's proofs under each of the four prongs delineated in N.J.S.A. 30:4C-15.1(a), and concluded the Division had carried its burden of presenting clear and convincing evidence Cathy's best interests were served by termination of Sandy's and Dan's parental rights, freeing Cathy for adoption.
The "four prongs" of the test are discussed in detail, infra in Section V.
The judge found the first prong was met by clear and convincing evidence because Cathy's safety, health or development would be endangered by the parental relationship. Judge Blackburn noted Sandy's disease made her "barely able to care for herself" and she was "exceedingly hampered by the relentless progression of her illness." In addition, Sandy was "unable to remediate the conditions which led to [Cathy's] removal" because of her disease. The judge also relied upon the manner in which the parents appeared at the hospital, as well as, the unsanitary conditions of their room. Finally, she reiterated Dan "chose not to participate in services and his whereabouts have become unknown."
Judge Blackburn next turned to the second prong to assess if the parents were able to provide a safe home for Cathy. The judge concluded Sandy "does not have the physical strength or stamina to adequately care for herself, and certainly not the energetic young child." The judge found despite "her efforts and demonstrated love for her child," Sandy was unable to eliminate the risk of harm to Cathy presented by her debilitating disease. In addition, Judge Blackburn concluded Dan could not provide a safe home for Cathy because he had "an extensive criminal history, including a conviction of shaken baby syndrome, he has not participated in services, [and] his current whereabouts are unknown." The judge also relied upon the psychologist's opinion that the resource mother was Cathy's psychological parent and Cathy would "suffer severe and enduring harm if she were removed from the care of her psychological parent." Thus, the court found the second prong was proven by clear and convincing evidence.
Judge Blackburn reached the same conclusion as to the third prong. She found the testimony of the Division workers was credible and the Division made reasonable efforts to provide services to the parents, including "psychological evaluations, parenting classes, substance abuse counseling, individual and family counseling" as well as providing transportation to these services. She noted "[e]xtraordinary steps were taken to offer more services." The judge also reviewed "the lengths the Division went to ensure visits with [Sandy]." In addition, the court noted the Division's consideration and ruling out of individuals suggested by Dan and Sandy as possible alternative placements for Cathy.
Finally, the court analyzed the fourth prong, deciding whether termination of parental rights would do more harm than good. The judge emphasized the psychologist's testimony that Cathy's resource mother was her psychological parent. In addition, the judge stated
[c]redible evidence clearly shows that neither biological parent can, at this time or any time in the foreseeable future, parent this child, nor could [they] ameliorate this severe and enduring harm that would occur if [Cathy] was removed from her foster parent[.]The judge found prong four was met by clear and convincing evidence.
As all four prongs were met, the judge entered a judgment terminating Dan and Sandy's parental rights, and granting guardianship to the Division. These appeals followed.
III.
We begin by setting forth the principles guiding our review of orders entered in Title 9 and Title 30 actions. The scope of appellate review is limited: we must defer to the trial judge's findings if they are supported by substantial, credible evidence, though legal conclusions are always subject to de novo review. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); In re Adoption of Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). We defer to those findings of fact supported by credible evidence in the record and we will not disturb proper legal conclusions based on those findings, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002), "[b]ecause of the family courts' special jurisdiction and expertise in family matters . . . ." Cesare v. Cesare, 154 N.J. 394, 413 (1998); see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). This deference applies unless the trial court's findings are "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 and internal quotation marks omitted).
N.J.S.A. 30:4C-15 to -15.4
IV.
We turn our attention first to Dan's challenge to Judge Anklowitz's determination of neglect in the Title 9 action. Dan argues the judge's finding of abuse and neglect was based in part upon the judge's conclusion Dan was using and distributing marijuana. He argues the judge did not identify how Cathy was harmed by Dan's prior marijuana usage when she was immediately placed in foster care after her birth. Also, while Dan admitted the condition of the room he shared with Sandy raised welfare concerns, he argues no evidence of imminent danger or substantial risk of harm to Cathy was shown.
Although Sandy's notice of appeal indicates she too appealed from the Title 9 order finding abuse and neglect as to Dan, she did not brief this issue. Accordingly, we deem it waived by her. W.H. Indus. Inc. v. Fundicao Balancins, LTDA, 397 N.J. Super. 455, 459 (App. Div. 2008) ("An issue not briefed is deemed waived.").
We find Dan's challenge to the court's reliance on his use of marijuana to be specious because he refused to undergo any evaluation to determine the extent and impact of his drug use. His challenge to the judge's conclusions about his exposure of Cathy to a substantial risk of harm is equally without any merit.
We are satisfied the judge's decision met the legal standards set forth in Title 9, N.J.S.A. 9:6-8.21 to -8.73, which is designed to not only protect children who suffer "'serious injury inflicted upon them by other than accidental means[,]'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (quoting N.J.S.A. 9:6-8.8), but also children who are at risk of being harmed. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 18, 22-23 (2013). A finding of a risk of harm must be supported by the preponderance of the evidence of the "totality of the circumstances" presented at a fact-finding hearing. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011).
Under Title 9, an abused or neglected child is defined as:
[A] child less than 18 years of age whose . . . physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so through offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . or by any other acts of a similarly serious nature requiring the aid of the court . . . .
[N. J.S.A 9:6-8.21.]
The failure to provide adequate shelter for a child can be the underpinning for a finding of neglect, but substandard living conditions alone are not enough to support that finding. Doe v. G.D., 146 N.J. Super. 419, 431 (App. Div. 1976), aff'd, 74 N.J. 196 (1977). To support the finding, the conditions must place a child in imminent danger of impairing the child's physical or mental health. N.J.S.A. 9:6-8.21(c)(4). Where the conditions in a house are not the result of poverty, but instead are the result of parents simply not caring about obvious safety and health risks their children are exposed to, neglect can be found in the parent's apparent indifference to the potential harm that such filthy and dangerous conditions could create. This indifference supports a finding that a parent failed to exercise a minimum degree of care in supplying the child with adequate shelter.
Following our review, we do not discern any abuse of discretion or misapplication of the law by Judge Anklowitz. Dan certainly could have exercised a minimum degree of care and concern by doing something about the living conditions and preparing a plan for Cathy's care, but simply chose not to do anything, despite knowing Sandy was not physically able to care for Cathy. His lack of concern created a substantial risk of harm to Cathy. Accordingly, we have no reason to disturb Judge Anklowitz's order.
V.
We reach a similar result in our assessment of Judge Blackburn's decision in the guardianship action because the clear and convincing evidence adduced at trial supported her determination that the Division met its burden.
The statutory criteria permits a court to terminate parental rights only when the State has proven by clear and convincing evidence, M.M., supra 189 N.J. at 280, all four of the statutory prongs:
(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).]
"The process for terminating parental rights is a difficult and intentionally rigorous one that must be satisfied by a heightened burden of proof . . . ." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010). The enhanced standard of proof for termination of parental rights is in keeping with public policy and constitutional doctrine, In re Guardianship of J.C., 129 N.J. 1, 9 (1992), as parents have a fundamental, constitutionally-protected interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). However, these constitutional protections often come into conflict with the State's parens patriae responsibility to prevent harm to children. J.C., supra, 129 N.J. at 10. As such, the statutory "best interests" test aims to achieve an appropriate balance between parental rights and the State's duty to children. "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. Therefore, parents in such proceedings should not be presumed unfit, and "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
Each prong must be proven by clear and convincing evidence, which "should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established," In re Perskie, 207 N.J. 275, 290 (2011) (citations and internal quotation marks omitted), and should not be considered separately, but should form a composite picture of what is in the best interests of the child. N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
The thrust of Dan's argument is the Division failed to prove prongs one and three of the best interests test because he never caused any actual harm to Cathy and the Division did not offer him services as it did Sandy. Sandy argues it failed to prove prongs one, two and three, because she never harmed Cathy, nor did she pose a substantial risk of harm to her and the Division did not provide her with adequate services to enable her to care for Cathy.
Neither parent challenged the sufficiency of the Division's proofs as to the fourth prong.
We disagree and find the evidence defeats these arguments. We are satisfied Judge Blackburn was correct in finding the Division met its burden by clear and convincing evidence as to all prongs, essentially for the reasons stated in her oral decision. The judge's opinion tracked the statutory requirements of N.J.S.A. 30:4C-15.1(a). In addition, the judge's decision accords with K.H.O., supra, 161 N.J. at 347-48; In re Guardianship of D.M.H., 161 N.J. at 365, 375-76 (1999); and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986); and is more than amply supported by the record. F.M. supra, 211 N.J. at 448.
A.
Dan argues the Division failed to prove prong one because he did not place Cathy at risk and did not harm her within the meaning of the statute. Sandy conceded the room she shared with Dan at the time Cathy was born was inappropriate and "not suitable for a child," however, she argues this was because Cathy was born early and they were not prepared for her birth. She asserts the unsuitability of the room and her disease are not a "sufficient basis upon which to make a finding that [Cathy's] safety, health or development has been or will continue to be endangered by the parental relationship." She also concedes her disease limited her ability to express herself verbally but argues her disease has not affected her cognitive functioning.
The focus on the first prong is "on the effect of harm arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. Harm to the child in the future and whether the parents are able to eliminate the harm is considered under the first prong and can exist where a trial court finds "the child's safety, health and development would be jeopardized upon a return to the biological parent." A.G., supra, 344 N.J. Super. at 436.
We are satisfied Judge Blackburn's decision as to the first prong was supported by clear and convincing evidence of a substantial risk of harm to Cathy if she were returned to her parents. The unrefuted evidence established Sandy was incapable of caring for Cathy or even herself, through no fault of her own, due to her suffering from Huntington's disease, which exposed Cathy to a substantial risk of harm if the child were left alone in Sandy's care. She could not supervise, carry, bathe, feed or otherwise physically care for Cathy, nor would she be able to do so in the future. As discussed below when addressing prong three, there was no reasonable alternatives that would allow Sandy to provide some parenting and allow Cathy's safe reunification with her mother.
The evidence as to Dan exposing Cathy to a substantial risk of harm included the uninhabitable conditions of his residence and the indifference he demonstrated by his plan to leave Cathy there alone with Sandy, who was not physically able to care for her. His failure to participate in Division services or evaluations also evinced a voluntary decision to withdraw from pursuing his parental rights.
B.
In her challenge to Judge Blackburn's findings as to the second prong, Sandy argues the Division's proofs were "insufficient" to prove she "was unable or unwilling to provide a safe and stable home" for Cathy. In support, although she concedes the room she resided in while she was pregnant was not appropriate for a child, Sandy claims the evidence weighed against termination of her parental rights because she was able to obtain a newer, cleaner residence after Cathy was born and the evaluating psychologist noted she was motivated to improve her parenting skills through Division training and services.
Under the second prong, the Division has the burden of proving by clear and convincing evidence "not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348. Alternatively, the Division can show that a parent is "unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. This prong may be satisfied by signs of "parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home . . . ." Id. at 353. The second factor, therefore, assesses "the potential future harm caused by a 'delay of permanent placement.'" N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied sub nom. N.J. Dep't of Children & Family v. K.G., 205 N.J. 519 (2011).
Proof of fault or malice is not required. The second prong can be satisfied by clear and convincing evidence of a disabled parent's inability to "meet[] the child's needs", without continuous assistance, due to "serious and debilitating illnesses from which [the parent] suffered. A.G., supra, 344 N.J. Super. at 436-37, 441 (finding termination appropriate where a parent with psychiatric disability would require full-time supervision); In re Guardianship of D.N., 190 N.J. Super. 648, 654 (J. & D.R. Ct. 1983) (holding the Division did not have to provide the twenty-four-hour supervision necessary to help mentally disabled individuals parent their child).
The unrefuted, expert opinion evidence considered by the court clearly supported the judge's finding Sandy's disease prevented her from caring for Cathy now or in the future. The fact that Sandy secured a new residence on her own and maintained it, with Division services in place, does not alter the harsh reality caused by the debilitating effects of her progressing disease, which caused her to become disabled, both physically and cognitively to the point she presented a risk to herself and any child in her custody. Without any hope for improvement, Judge Blackburn properly found Sandy presented a continuing risk of harm to Cathy, which Sandy could not, unfortunately, remediate. In addition, the evidence clearly and convincingly supported the conclusion that removing Cathy from her resource mother would only add to Cathy's harm.
C.
Addressing next the third prong, Dan argues the Division failed to prove prong three because it failed to make reasonable efforts to provide him with services. He also claims he was not mentioned in the order to show cause and that the court made meritless conclusions about him. Sandy argues the Division should be held to a heightened standard to provide reasonable services to her in light of her disability. She claims the Division should have "further acquired and been more diligent in ascertaining whether [Division of Developmental Disabilities (DDD)] services would have been available to [Sandy]." She argues DDD services in her home or residential placement could have allowed her to provide a stable and safe home for Cathy. In addition, she asserts the Division did not adequately consider alternatives to termination.
Under the third prong, the Division must prove it made reasonable efforts to provide appropriate services and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3).
Title 30 defines "reasonable efforts" as
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).]
The diligence and reasonableness of the Division's efforts on behalf of a parent are not measured by their success. D.M.H., supra, 161 N.J. at 393. The efforts must be assessed on an individualized basis based on the circumstances. Ibid. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid. There are certain factors that may suggest that additional Division efforts to reunite a family are no longer reasonable. A.W., supra 103 N.J. at 610. Such efforts may no longer be reasonable when a parent no longer engages in services or suffers from an illness that precludes him or her from benefiting from services. See ibid.
Under this prong, the Division is also required to "initiate a search for relatives who may be willing and able to provide the care and support required by the child," N.J.S.A. 30:4C-12.1a, and "the Division's policy is to place, whenever possible, children with relatives." N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 529 (App. Div. 2003).
We are satisfied the Division proved the third prong's requirements for providing services and considering alternatives to termination of parental rights, essentially for the reasons stated by Judge Blackburn. Dan's arguments about the Division not attempting to help him and Sandy's arguments regarding the DDD and the Division's other efforts are without any merit to warrant further discussion, R. 2:11-3(e)(1)(E), as they are totally unsupported by the record. Suffice it to say, Judge Blackburn correctly found prong three was met because the Division provided Sandy and offered Dan a plethora of services, which could not help Sandy remove her impediment to parenting and which Dan was not interested in pursuing. There was no evidence DDD services would have enabled Sandy to care for Cathy The Division also adequately considered alternative placements for Cathy by investigating individuals identified by Sandy and Dan and providing legitimate reasons, which were never challenged, why they were not suitable for caring for Cathy under the circumstances.
Finally, Sandy argues terminating her parental rights because she suffered from Huntington's disease violated the LAD and ADA. Sandy concedes, however, that we previously addressed this argument in the context of a parental rights termination case and found it had no application because "to allow the provisions of the [LAD] and ADA to constitute a defense to a termination proceeding would improperly elevate the rights of the parent above those of the child." A.G., supra, 344 N.J. Super. at 442. "Reliance upon the LAD [and the ADA] would change the focus of the termination case from the best interests of the child to the rights of the parent." Id. at 441. However, Sandy argues A.G. is not binding authority and encourages us not to follow the A.G. decision. She also asserts she does not "have the type of disability that would preclude her from parenting her child with reasonable supports." We, however, disagree and decline Sandy's invitation to depart from our previous view.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION