Opinion
DOCKET NO. A-2629-11T4
01-08-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. K.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF I.A.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.A.S. (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.PER CURIAM
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-56-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.A.S. (Christopher A. Huling, Designated Counsel, on the brief).
Defendant K.T. appeals from the Family Part judgment terminating parental rights to her son I.A.S. (Ian). Defendant contends that the Division of Youth and Family Services (the Division) failed to prove by clear and convincing evidence the four prongs of N.J.S.A. 30:14C-15.1(a). After considering the arguments presented in light of the record and the applicable law, we are satisfied that the trial judge's findings are firmly supported by substantial, credible evidence in the record as a whole and fully supported his legal conclusions. See, e.g., Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). Consequently, we affirm the judgment of the Family Part.
We have fictionalized the name of the child to protect his identity.
The Division was recently renamed the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).
I.
We derive the following facts from the trial record.
Ian was born on April 23, 2010, to defendant and an unknown father. Defendant became known to the Division as an adult in 2009 when her three older children were placed in the Division's custody because of her drug use and inability to care for her children. On the date of Ian's birth, a social worker at the hospital reported defendant had inconsistent prenatal care and tested positive for PCP a few weeks earlier. The Division effected an emergent Dodd removal on April 26, 2010, and placed Ian in the care of a foster parent who now wishes to adopt him.
"A 'Dodd' removal refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82." Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (citation omitted).
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While pregnant with Ian, defendant tested positive for PCP several times and was referred to the Challenge program (Level II) in October 2009 after a Division substance abuse evaluation confirmed her use of PCP, and found it to pose an "imminent risk of harm to the child . . . ." Defendant did not complete the program, however.
Thereafter, between November 2009 and September 2011, the Division referred defendant to various inpatient and out-patient drug treatment programs, including those at Newark Renaissance House, Preferred Children's Services, Eva's Village, Options Counseling Center, Turning Point, Trinitas, Great Expectations, and Cura. Defendant did not cooperate with treatment services and did not complete any of the programs. She also tested positive for PCP on several occasions during this period. Defendant was also referred for parenting skills training, but never completed the program.
On March 3, 2011, Donna LoBiondo, Ph.D., a psychologist, conducted a psychological evaluation of defendant. At that time, defendant lived part-time with her boyfriend and part-time with her mother. Psychometric testing indicated that while defendant could read and decode most materials at a high school level, her IQ was 65, which is consistent with mental deficiency. LoBiondo concluded that defendant likely had a "verbally based disability," based on difference in math and verbal scores on the tests.
LoBiondo also evaluated defendant in the areas of parenting competence, beliefs and expectations. Two of defendant's scores were in the low range, while the third was classified as mid-range or average. LoBiondo cited defendant's persistent drug abuse, inability to complete treatment and training programs, and failure to address her physical abuse of her older daughter, and concluded that defendant was not fit to parent.
Despite finding that defendant had matured and learned to take care of herself in a number of ways, following a re-examination of defendant on October 27, 2011, LoBiondo did not change her opinion regarding defendant's inability to be a fit parent. She explained that defendant had still not completed a drug program and appeared to be immature and underdeveloped as an adult.
Further, LoBiondo undertook separate bonding evaluations of Ian with his foster parent, maternal grandmother and defendant. LoBiondo concluded that the child and his foster mother had formed an attachment. She also found an attachment between Ian and his maternal grandmother, but found that Ian viewed his maternal grandmother as a familiar and friendly adult, and not as a parent. LoBiondo concluded there was no bond between defendant and Ian.
LoBiondo opined that termination of defendant's parental rights would not result in psychological harm and would likely do more good than harm, considering Ian's relationship with his foster parent. LoBiondo added that Ian would be at risk to suffer emotional neglect with defendant, and that because defendant was still using drugs, she would be unable to attend to his medical needs or to provide safe and secure housing.
Following trial, the judge found that all four prongs for termination of defendant's parental rights under N.J.S.A. 30:40C-15.1(a) had been satisfied by clear and convincing evidence. As to prong one, the judge determined that Ian's safety, health or development were endangered at birth and would continue to be endangered by the parental relationship, due to defendant's persistent drug use, homelessness, lack of employment and dependence on relatives and friends for shelter and support.
With respect to prong two, the judge noted that despite numerous referrals and services, defendant continued to use PCP and remained homeless. He explained that defendant "failed and refused to remediate the harm that caused the removal and placement of [Ian], to wit [,] her drug addiction." He added that defendant has "no credible intention to address her drug issues and she remains addicted and a current user of PCP." As to the second part of prong two, the judge stated that, based on the credible testimony of LoBiondo, delay in the permanent placement of Ian would "add to the harm . . . ."
The judge found the third prong was satisfied by clear and convincing evidence. He explained that defendant was given numerous referrals for counseling and treatment and failed to complete any of the programs. Defendant continued to test positive for PCP. The judge also found that the Division had appropriately considered relative placement for Ian, but ruled the relatives out as placement resources.
The judge also found the fourth prong satisfied by clear and convincing evidence. He found the Division's expert, LoBiondo, to be qualified and credible and that her opinions were "consistent with the facts adduced at trial." He credited LoBiondo's expert opinion that defendant does not have the capacity to safely parent Ian and that removal of Ian from the foster parent would cause serious and enduring harm.
II.
Defendant contends on appeal that the Division "failed to produce evidence" satisfying the four prongs of N.J.S.A. 30:40C-15.1(a) for termination of parental rights. As to prong one, defendant argues that her "prenatal conduct is not relevant and should not have been interpreted as a danger to [Ian]." She argues that evidence supporting prong two was deficient because she "has matured and understands she must take care of herself." She challenges the Division's proofs on prong three by arguing the "quality of the programs [defendant] was referred to were poor." Finally, with respect to prong four, defendant asserts that the judge wrongfully concluded that her "drug use has affected her mind and capacity to function" without supporting "expert testimony." None of these arguments are persuasive.
In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:
(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).]
These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We recognize that a parent's right to raise his or her child is constitutionally protected. Id. at 346. However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm judged by the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We do not disturb the trial court's findings unless they are so clearly mistaken or unsupported that our intervention is necessary to correct injustice. F.M., supra, 211 N.J. at 448. "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision[.]" Id. at 448-49. Applying that standard, we discern sufficient support in the record to support the trial judge's decision.
We address prongs one and two together. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (stating, regarding prongs one and two, "evidence that supports one informs and may support the other"). Under the first prong of the termination statute, the trial court must assess whether there is clear and convincing evidence of harm arising out of the parent-child relationship. N.J.S.A. 30:4C-15.1(a)(1); see K.H.O., supra, 161 N.J. at 348 ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship.").
The fact that there is no evidence that defendant physically abused Ian does not preclude a prong one finding. See Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) ("The absence of physical abuse or neglect is not conclusive[.]" (internal quotation and citation omitted)). It is sufficient to prove the risk or danger of harm. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).
The second prong is aimed at determining whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. The court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. Under the second prong, a trial court determines whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.
In this case, despite her long involvement with the Division, defendant has been unable to overcome the significant obstacles to her ability to parent, including her drug abuse. Proof of defendant's persistent, significant, and treatment-resistant drug abuse demonstrates her inability to prevent harm to a child's physical or emotional health. See K.H.O., supra, 161 N.J. at 353 (stating that "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse" may be probative of the second prong). Although "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect," Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011), we perceive no error in the court's conclusion that defendant's chronic abuse of PCP endangered Ian's physical and emotional health.
Moreover, defendant's past problems parenting her older children is probative of her future conduct as Ian's parent. See J. v. M., 157 N.J. Super. 478, 493 (App. Div.) (addressing parents' treatment of other children, and noting that a court may rely on past conduct when trying to predict future conduct), certif. denied, 77 N.J. 490 (1978). Evidence of the harm that Ian would suffer if removed from his foster parents also supports the court's prong two decision. See N.J.S.A. 30:4C-15.1(a)(2) (stating harm "may include evidence that separating the child from his [or her] resource family parents would cause serious and enduring emotional or psychological harm").
In sum, we discern ample support for the trial judge's finding that prongs one and two were met. The evidence of defendant's persistent drug abuse, resistance to treatment, and unstable living arrangements, all supported the judge's conclusion that Ian's health and development was endangered and would continue to be endangered.
Turning to prong three, defendant challenges the court's finding that the Division made reasonable efforts to provide services to help defendant correct the circumstances that led to Ian's placement outside the home. 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" that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "'coordinated'" and must have a "'realistic potential'" to succeed. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10, (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
A court must consider whether a parent actively participated in the reunification effort. See D.M.H., supra, 161 N.J. at 390. The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of the [Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007)).
We reject the argument that the Division failed to make reasonable efforts in the case before us. The record is replete with instances of the services provided, which, in every instance, defendant failed to attend or fully complete. Her claim that the quality of the many recognized and highly regarded programs to which she was referred, was "poor" is utterly unpersuasive and unsupported in the record.
Lastly, we shall not disturb the court's finding, under prong four, that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. It is, concededly, a "painfully difficult" decision that is vested in the trial judge who is most familiar with the case. Ibid. (quoting J.C., supra, 129 N.J. at 25). "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." K.H.O., supra, 161 N.J. at 363. In balancing harms, the court must be mindful of New Jersey's strong public policy interest in permanency. Id. at 357 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor.").
There was sufficient credible evidence in the record to support the court's conclusion that terminating parental rights would not do more harm than good. The court credited Dr. LoBiondo, who supported the court's prong four analysis. Dr. LoBiondo found that Ian had a positive attachment to his foster parents, and no attachment to defendant. Ian was in need of permanence, and disrupting his bond with the foster parents would be harmful. In contrast, the termination of parental rights would likely be beneficial to Ian. We find no error in the court's conclusion that prong four was met. Dr. LoBiondo was "a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with [defendant and] the foster parent." J.C., supra, 129 N.J. at 19.
The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
CLERK OF THE APPELLATE DIVISION