Opinion
DOCKET NO. A-3444-11T1
04-18-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.D.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF H.A.B., minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.A.B. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-76-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.A.B. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
This case involves the termination of parental rights of a mentally disabled woman, T.D.B. (Tina), who, experts opined, was cognitively and behaviorally incapable of safely parenting her daughter, H.A.B. (Helen), who was born with challenging special needs of her own. Tina argues the Division failed to make reasonable efforts to provide her with services tailored to her needs as a developmentally disabled parent. These services, she claims, should have included an assisted residential placement for Tina and Helen. Tina asserts that such services would have enabled her to overcome her limitations, which otherwise posed a threat of harm to her child and led to her daughter's placement with foster parents.
However, there is no evidence in the record that the residential services Tina seeks were reasonably available, or that they would have been effective. The Division relied on the advice of two experts who opined that training and education would be ineffective in enabling Tina to care for her child without constant supervision. Tina's inability to comprehend her own limitations, and her resistance to instruction, also made her an ill-suited candidate for a co-parenting arrangement, notwithstanding that no qualified person was identified to participate in such an arrangement with her.
Consequently, having carefully considered Tina's arguments in light of the record and applicable law, we affirm the court's January 18, 2012 order terminating parental rights and awarding guardianship to the Division.
I.
It was undisputed that Tina suffered from significant and persistent disabilities that impaired her ability to parent Helen. Tina was mildly retarded and had Shprintzen-Goldberg Syndrome, a genetic disorder. Tina received Supplemental Security Income (SSI) and attended an adult day care program. Without the benefit of adequate pre-natal care, Tina gave birth to Helen over a toilet at a friend's house on November 15, 2009. After Helen was brought to the hospital, she was placed in the intensive care unit nursery. She was ultimately diagnosed as having Shprintzen-Goldberg Syndrome as well. She also suffered physical impairments, including one that made it difficult for her to breathe. She received treatment at a neo-natal high risk clinic for premature babies.
The disorder, also known as Marfan's syndrome, is a "hereditary disorder principally affecting the connective tissues of the body, manifested in varying degrees by excessive bone elongation and joint flexibility and by abnormalities of the eye and cardiovascular system." Stedman's Medical Dictionary 490 (1995). According to a physician who coordinated care for Tina and Helen, children with the syndrome generally develop mild to severe mental retardation.
The Division obtained emergency custody of Helen on November 23, 2009, while she was still in the hospital. At the time, Tina lived in a crowded apartment with her mother D.B. (Debra), her adult twin half-sisters, her two teenage half-brothers, and the baby son of one of the half-sisters. The half-sisters were both employed and jointly leased the apartment. Debra was identified as Tina's guardian, although there is nothing in the record verifying that a court had formally appointed her.
The Division had excluded placing Helen with either Debra, or Tina's aunt B.B. (Bernice), because of their prior involvement with the Division. Debra had abused drugs in the past. As a result, her children, including Tina, previously had been temporarily removed. The Division also excluded placement with one of Tina's half-sisters, then nineteen years old, because she resided with Debra.
As a result, Helen was initially placed in a foster home. Although Helen thereafter briefly resided with a family friend of Tina, that placement ended after the friend determined that Helen's medical needs were too demanding. In January 2010, Helen was placed with different foster parents, who cared for her continuously thereafter. They expressed the intention to adopt Helen upon termination of parental rights.
In assessing Tina's potential to parent Helen, and in determining the appropriate services to provide to Tina, the Division relied upon psychological and neuropsychological evaluations prepared in December 2009 and February 2010 by Andrew P. Brown III, Ph.D. In his 2009 evaluation, Dr. Brown found that Tina provided "convoluted" answers to questions that were "indicative of poor or impaired comprehension." She had "[b]orderline" self-esteem. Tina was "Mentally Deficient," and had an IQ of less than 70.
Dr. Brown concluded:
[Tina] presents with psychometric evidence suggesting that she is mildly retarded and with poor comprehension. She is a poor historian, answers questions in a convoluted and at times disconnected manner, and she will give contrasting statements to the same question asked minutes apart. Although there appears little evidence that she manifests abusive tendencies, suffers depression or other psychiatric disturbance, [Tina] relates to parenting in an immature manner as she could not express a plan beyond bottle feeding and changing diapers. Considering the presence of impaired or poor comprehension, however, it is possible that [Tina]'s cognitive potential to parent is considerably greater than what she is able to express verbally.
While [Tina] does not appear abusive, the dynamics of intellectual limitation and poor insight may potentiate episodes of poor
parental judgment and this could result in unintentional acts of child endangerment.
Dr. Brown added, "It is not advised that [Tina] be allowed independent custody of her child as . . . the potential for child endangerment appears considerable subsequent to cognitive limitations." He recommended a neuropsychological assessment, which would "determine if services are available to enable parenting or if alternate plans should be considered."
After conducting the neuropsychological evaluation two months later, Dr. Brown concluded that Tina would be unable to parent Helen absent supervision. Tests revealed Tina had "poor auditory attention and concentration," was neurodevelopmentally "impair[ed]," was compromised in her language development, "mentally deficient," and "mentally retarded." Her reading and arithmetic skills were at a kindergarten level, and her spelling skills at a first grade level. Reviewing Tina's various limitations, Dr. Brown distinguished her from developmentally disabled parents who could, with reasonable assistance, function as parents:
There are subsets of parents whom, although mentally challenged, are nevertheless able to demonstrate the ability to comprehend, form concepts, and engage in mental flexibility well enough to execute parental functioning. Unfortunately [Tina]'s cognitive and neuropsychological repertoires do not intersect with the fore mentioned [sic] subset of parental
attributes found in some mentally challenged adults. The obtained neuropsychological indices are consistent with the impression of limited cognitive processing, poor comprehension, reasoning, and decision-making abilities. Liabilities are further observed in the efficiency of attention, concentration, memory, concept formation, difficulty engaging in tasks that require mental shifting or sequential-alternative processing, and substandard awareness of social norms.
As a consequence, [Tina]'s ability to conceptualize and perform abstract thought and/or solve even simple problems is poorly developed.
The results are overwhelming in depicting [Tina] as mentally inflexible and as a result, her ability to engage in effective and independent problem solving is considerably limited as she evidences difficulty comprehending and processing information well for further execution (i.e. comprehension, reasoning, judgment, decision making).
In view of these findings, Dr. Brown concluded "[Tina] is not able to sustain attendance to the needs of her child without supervision." Education, although not discouraged, would not overcome her limitations.
Within a reasonable degree of psychological certainty [Tina] is not able to parent children independent of supervision subsequent to the extent and pervasive nature of neuropsychological deficits. While participation in parenting skills is not discouraged it is within a reasonable degree of psychological certainty that the magnitude of [Tina]'s deficits willThe psychologist also opined Tina would "likely require legal guardianship for the remainder of her life," as she qualified as a "mentally disabled adult."
overwhelm benefits that may be derived from
a course in parenting skills. Furthermore [Tina]'s neuropsychological deficits are permanent and will not be lessened or altered with efforts aimed at remediation. It is advised that alternate family resources be explored for [Tina]'s child.
In the months that followed, the Division assisted Tina in weekly visits with Helen, providing supervision and arranging transportation. The Division also searched for a suitable relative placement for Helen, with no success. The Division also provided referrals to Adult Protective Services (APS), in response to Tina's allegations that family members mistreated her, and to other agencies, in an effort to obtain services tailored to Tina's needs. We address these efforts in turn.
Tina generally visited Helen on a weekly basis. For many months, the foster parents permitted the visitation in their home, and permitted Tina to visit more frequently so long as the visits did not disrupt Helen's schedule. Tina had to be instructed not to arrive unannounced after repeated instances when she did so. Many visits went smoothly and Tina acted appropriately.
On other occasions, the visits were cut short because Tina inappropriately cared for Helen, reacted angrily to instruction or constructive criticism, or otherwise acted aggressively. On several occasions, Tina canceled a visit, or cut it short, because she wanted to participate in an activity at her day care program, she disappeared from her day care program, or she was emotionally upset.
During one visit, when Helen had difficulty taking a bottle, Tina responded by shoving the bottle more deeply into the baby's mouth. On another occasion, in March 2011, Tina fell asleep with Helen in her arms; as a result Helen was not held upright as required because of Helen's breathing problems. When Tina was awakened and instructed that she could not fall asleep, she reacted angrily, cursed, and threatened physical harm to the foster parents. After that incident, the foster parents terminated visits in their home and visitation was moved to Division offices after a brief hiatus. Tina's explosiveness was also displayed at her day care program, which considered suspending her because of her behavior. She often had to be encouraged to attend her visits with Helen.
The Division repeatedly asked Debra and Tina to suggest other family members or friends who could serve as a placement, after the Division ruled out Debra, and Tina's aunt, Bernice, because of their past acts of abuse and neglect, and the family friend opted out of caring for Helen after a one-month stint. Tina suggested no other candidates. In the summer of 2010, the Division explored placing Helen with a cousin in Maryland, mentioned by Debra, but the cousin eventually declined. Other family members refused to cooperate with Division inquiries.
The Division also attempted to assist Tina in addressing her allegations that she was mistreated by family members, and in securing other services related to her disabilities. Tina complained that family members misused her SSI payments, denied her pocket money, and denied her new clothes while buying clothes for themselves. She also alleged her mother restricted her activities outside the day care program, subjected her to verbal and physical abuse, and failed to feed her adequately. In September 2010, Tina alleged her teenage half-brother threw a "can[ned] good" at her head, but then revised her allegation, claiming he threw an empty aluminum soda can. Tina also complained that her mother did not support her regular visitation with Helen, believing that Tina would be unable to retain her parental rights.
The record indicated that a half-sister was the payee. Tina lived in the apartment that the half-sisters rented. Later, when Tina moved to Bernice's apartment, Bernice became the payee. The Social Security Administration (SSA) decides whether to pay SSI benefits to a "representative payee," 20 C.F.R. § 416.610, and selects the payee based on its consideration of, among other factors: the relationship between the potential payee and the beneficiary; whether the potential payee has legal authority to act on behalf of the beneficiary; the "amount of interest . . . show[n] in the beneficiary," and "[w]hether the potential payee is in a position to know of and look after the needs of the beneficiary." 20 C.F.R. § 416.620. As the record does not indicate that the allegations of misuse of Tina's SSI payments were ever referred to the SSA, we direct the Clerk of the Appellate Division to provide a copy of the court's opinion, along with sufficient information to enable the SSA to identify the persons involved, and to take any further action it deems appropriate. Cf. Sheridan v. Sheridan, 247 N.J. Super. 552, 563 (Ch. Div. 1990) (observing that a judge must report illegal or improper activities).
Debra asserted that Tina was promiscuous, and would sometimes disappear for days, during which she would have sexual relations with men.
In response to these allegations, the Division made referrals to APS; filed a report with the police (regarding the soda can incident) and transported Tina to the police station to make a report; and referred Tina to programs that offered residential services.
APS ultimately determined that Tina was not in a crisis and it apparently did not seek protective services for Tina. See N.J.S.A. 52:27D-411 (stating that a county adult protective services provider "shall provide or arrange for appropriate protective services, as may be available" and "may refer a person who needs protective services and who, because of a developmental disability . . . is in need of specialized care, treatment or services, to the Division of Developmental Disabilities"). Although the record reveals that Bernice was not cooperative with APS investigators who attempted to determine whether Tina had adequate accommodations, Tina reported to the court in February 2011 that she was happy living with her aunt, who treated her well.
There also is no evidence in the record that APS sought an order from a court to enable it to perform its evaluation. N.J.S.A. 52:27D-410 (stating that "[i]f the county adult protective services provider is prevented from conducting an evaluation of a report of abuse, neglect or exploitation, the county adult protective services provider may petition a court of competent jurisdiction for an order to conduct the evaluation"). APS is also empowered to seek court assistance in providing protective services to an adult in need, where the adult's caretaker interferes. N.J.S.A. 52:27D-412. APS is also empowered to initiate legal action, including petitioning for guardianship. N.J.S.A. 52:27D-416. There is no evidence that any of these steps were taken.
The Division also attempted to secure services for Tina from DDD. The Division's caseworker testified that she was informed that DDD had not acted on an application for services because Debra failed to cooperate. After assisting Tina in applying to a residential program operated by Easter Seals New Jersey, the Division learned that Tina was deemed ineligible because she did not have an "Axis I" diagnosis — in other words, she did not suffer from mental illness. The Division explored other residential programs, only to learn that Tina was ineligible for one reason or another. It identified one program that conceivably could have provided housing to Tina — but not Helen — if Tina were receiving DDD services.
The record before us does not include non-hearsay statements from DDD regarding Tina's eligibility for services, and any impediments to providing her services. We note that the trial court itself was empowered to apply for services on behalf of Tina, even if family members did not. See N.J.A.C. 10:46-3.1(a)(3) ("A court of competent jurisdiction may apply on behalf of an individual 18 years of age o[r] older, who appears to have a developmental disability.")
An Axis I diagnosis refers to clinical disorders except for personality disorders and mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 27 (4th ed. 2000).
The Division informed Tina in September 2010 that it intended to recommend adoption for Helen. The Division filed its complaint for guardianship in December 2010. Early in 2011, Leslie J. Williams, Ph.D., conducted a psychological evaluation of Tina, a bonding evaluation of Tina and Helen, and a bonding evaluation of the foster parents and Helen.
Although Dr. Williams did not administer intelligence testing, Tina impressed him as being in the mildly mentally retarded range of intelligence, consistent with Dr. Brown's earlier evaluation. Although Tina stated she wanted Helen in her care, she could not provide a coherent explanation as to why the Division was involved. Dr. Williams found no evidence of formal thought disorders. After observing Tina's interactions with Helen, Dr. Brown concluded no bond existed between the two. Tina did not interact or talk with Helen, and Helen did not react negatively when Dr. Brown separated her from Tina.
Dr. Williams concluded Tina lacked the capacity to safely parent Helen.
[Tina] has a genetic disorder, is mildly mentally retarded and has developmental delays. . . . [Tina] has also suffered abuse at the hands of her family; abuse that has left her with feelings of anger, depression and loss as well as helplessness and low self-esteem. [Tina] has not been able to meet her own needs, let alone the needs of a dependent, special needs child. She has no comprehension of her medical issues/limitations or those of [Helen]. [Tina] has never lived on her own and is not capable of competitive employment. She spends her days at an adult daycare center.He concluded, "[Tina] is not capable of providing adequate parenting of [Helen] and, through no fault of her own, will never be capable of doing so." He opined that placing Helen with Tina would expose Helen to the risk of neglect, "at a minimum[.]"
Regarding the impact of termination of Tina's rights on Helen, Dr. Williams stated, "[Helen] is not bonded with [Tina], who has not functioned as a parent to [Helen], and she would not suffer enduring harm if [Tina's] parental rights were terminated."
On the other hand, Dr. Williams found that Helen had bonded with her foster parents. During the evaluation, she snuggled into her foster father, while occasionally reaching over to touch her foster mother's arm. She played with her foster parents and shied away from intervention by Dr. Williams.
Dr. Williams concluded Helen viewed her foster parents as sources of nurturance and safety. He opined that Helen would endure severe psychological harm if removed from her foster parents, though not permanent distress because of her age. Dr. Williams concluded Helen is capable of bonding with another caregiver, provided the caregiver is capable of providing for her. Dr. Williams believed Tina should be adopted by the foster parents.
The only witnesses at the one-day trial, conducted in November 2011 before Judge Claude M. Coleman, were Dr. Williams and the Division's caseworker. The caseworker recounted many of the facts we have described above. She reiterated that Helen's foster parents wanted to adopt her.
Dr. Williams affirmed the conclusions in his evaluation. He testified, "I don't think that [Tina] can provide adequate independent parenting," and opined that her limitations could not be "remediated where she would ever be able to care for a child." Specifically, he concluded that any unsupervised contact between Tina and Helen posed a risk of harm.
Q Is there a significantly — is it fair to say that there's a significantly highDr. Williams excluded the possibility that Tina could parent jointly with another.
risk that, if . . . [Helen] was left alone with [Tina], that she could suffer some harm?
A Yes, I really have no doubt. [Tina] just doesn't know - she's not aware of . . . what [Helen] would need or any child for that matter. And, [Helen] would be possibly neglected — maybe not actively abused, but at least neglected. Her needs would not be met.
Q So, could she co-parent with assistance from someone?
A No, I do not believe that she would be able to engage in even a co-parenting relationship. Again, I think what would happen — and, based on her behavior during the evaluation and the record — is I think that she would be angry, upset.
I don't think that she could work with and cooperate with another person. [Tina], through . . . all of this, was clear in kind of an angry way that she wanted [Helen], . . . period.
II.
In a cogent written opinion dated December 23, 2011, Judge Coleman set forth extensive findings of fact and concluded the Division met its burden to establish by clear and convincing evidence the four prerequisites to terminating parental rights:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986). On January 18, 2012, Judge Coleman entered a judgment of guardianship terminating Tina's parental rights and approved the Division's permanent plan for adoption.
(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-15.1a.]
The order also terminated the rights of the father, who was never identified.
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Under the first prong, the court held Tina endangered Helen's health and development based on: Tina gave birth to Helen outside of a hospital setting, above a toilet bowl; she failed to obtain prenatal care; her cognitive deficits prevented her from attending to Helen's medical needs; Tina resisted redirection and assistance in caring for Helen during visits, and spent much of her visits focused on matters other than Helen's care.
Under the statute's second prong, the court found that Tina's disabling condition remained unchanged despite the treatments and services provided to her, and that "there is no chance that her cognitive functioning might improve to a level that would allow her to properly care for [Helen]." The court also cited Tina's insistence that she knows how to be a good parent, though she cannot "communicate what constitutes 'good parenting' or express any legitimate plan for [Helen]'s future." The court concluded:
Her demonstrated lack of insight, poor judgment, low cognitive functioning and poor impulse control demonstrate that the child would remain at risk if placed in her care and that the harm would continue if [Helen] were placed with her. . . . She spends her days at an adult day care facility. Despite the fact that [Tina] does not "appear to be abusive," the dynamics of her intellectual limitation and poor insight may potentiate episodes of poor parental judgment and this could result in child endangerment.
Regarding the third prong, the court found the Division offered "ample and regular services" to Tina, including transportation and public transit assistance; referrals to Easter Seals for residential placement, to Dr. Williams and Dr. Brown for evaluations, and to APS to investigate her allegations of abuse; monitoring Tina's application for DDD services; and efforts to engage Tina's family in finding a placement instead of termination and various services provided to Helen.
Relying on In re Guardianship of D.N., 190 N.J. Super. 648 (J. & D.R.Ct. 1983), Judge Coleman rejected Tina's argument that she could raise Helen with proper assistance. The court determined that "plac[ing] the burden on [the Division] of providing indefinite around the clock care, instead of terminating parental rights, would be in opposition to the very purpose of [the Division's] involvement in this case."
Finally, with respect to the fourth prong, the judge relied on Dr. Williams' testimony that there was no bond between Helen and Tina, though there was a "strong bond" between Helen and the foster parents. The court also cited Dr. Williams' testimony that Helen would not suffer harm if Tina's parental rights were terminated, and that Helen would benefit if she were freed for adoption because the foster parents were committed to adopting her. The court also emphasized the foster parents' demonstrated ability to care for Helen's various medical needs, and to provide the permanence that Tina could not.
This appeal followed. Tina challenges the court's findings regarding prong two and three, asserting that with the provision of appropriate services, Tina would have been able to eliminate the harm facing Helen.
III.
Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings based on his or her familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104. Having reviewed the record, we are satisfied that Judge Coleman's findings are well-supported by credible evidence, and he correctly applied the governing law. We add these additional comments.
Tina argues that the Division was obliged to provide "a multitude of services: specialized parenting skills, therapeutic visitation, and a supervised setting where Tina may parent her daughter." She argued that "a residential placement where various levels of support are available would enable her to parent with an appropriate level of supervision." We disagree.
The services the Division is required to provide to satisfy its obligation under N.J.S.A. 30:4C-15.1a(3) must be reasonable, but not necessarily successful. In re Guardianship of DMH, 161 N.J. 365, 393 (1999). Moreover, the Division may satisfy the third prong by diligently seeking services from other providers, even if the services are ultimately unavailable. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 286 (2007) (finding prong three was met where Division unsuccessfully sought day care for son, where working father could not leave son at home because of the risk posed by developmentally disabled mother). The Division also is not obliged to engage in efforts it has no reasonable basis to believe will be fruitful; services "must have a 'realistic potential' to succeed." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (App. Div. 2012) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002)).
In L.J.D. , we held that the Division bore a "heightened" responsibility to extend reasonable services to a teenage parent who was herself in the Division's custody because of "the special circumstance[s] posed by the child-parent's young age." Id. at 489. "[T]he Division's efforts must include satisfactory services to aid the development of the child-parent's maturation and necessary skills to adequately parent his or her child." Ibid. Tina argues that a similar heightened responsibility applies in this case because of her disabilities. We agree that services must be tailored to the particular parent's needs and the facts of circumstances of the case. Id. at 488. That principle applies whether the needs arise from the parent's youth, or developmental disabilities.
However, there is no evidence that the extensive, residence-based services that Tina envisions were available. Rather, it appears that even residential services for Tina by herself were not accessible. Tina argues that her mother interfered with her access to DDD services. However, the record does not contain non-hearsay information from DDD verifying that interference, or any other evidence that, had Tina begun receiving DDD services, she would have qualified for a residential placement with Helen.
We have previously recognized "that DDD is faced with the daunting and unenviable task of attempting to provide for a large number of clients with inadequate funding for placement of all those in need for services." J.D. ex rel. D.D.H. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 522 (App. Div. 2000). As a result, DDD maintains a waiting list for residential and day program services. Ibid. (citing N.J.A.C. 10:46C-1.1 to -1.14). A person may be placed on a priority waiting list if he or she faces a "clear risk of abuse, neglect or exploitation," N.J.A.C. 10:46C-2.2(a)(3); if the person is homeless or in imminent peril, he or she may receive an emergency placement. N.J.A.C. 10:46B-3.3.
This record does not demonstrate that Tina would have qualified for a residential placement in the reasonably near future. The record does not reflect that Tina's allegations of abuse and exploitation were deemed substantiated. APS reportedly determined that Tina did not face a crisis situation and apparently took no remedial steps. Dr. Brown opined that Tina was a poor historian. Tina's belief that her SSI payments were wrongly diverted may have resulted from a lack of appreciation of how the money was used. The payee-family members were responsible to utilize the funds for her food and shelter and other necessary expenses. The Division acted reasonably in referring Tina's complaints to the police and APS.
Moreover, both Dr. Brown and Dr. Williams opined that no level of remedial services could have overcome Tina's disabilities. Although Tina insists that she does not seek "an 'around the clock' supervised setting," Dr. Williams opined that any unsupervised contact between Tina and Helen posed a risk of neglect. Moreover, a co-parenting arrangement was not feasible because of Tina's resistance to instruction and guidance.
Tina did not call an expert witness, and the record lacks any other proof to support her argument that additional services could have been tailored to meet her special needs, and to enable her to overcome her cognitive and behavioral deficiencies. To the contrary, the evidence supports the conclusion that Tina's cognitive limitations were permanent and her limitations in caring for her special-needs daughter were irremediable. Therefore, the court did not err in finding the Division satisfied prong three. We also reject Tina's challenge to the court's prong two finding, as that argument was predicated on her prong three argument that she was denied services, which would have enabled her to avoid harm.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION