Opinion
DOCKET NO. A-4115-12T1 DOCKET NO. A-4116-12T1
03-18-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.R. and D.W., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.I.R., D.T.W., C.M.B.J. and Z.M.J., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant R.R. (Theodore J. Baker, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Delia A. De Lisi and Paul E. Minnefor, Deputy Attorneys General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Waugh and Nugent.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-111-13C.
Joseph E. Krakora, Public Defender, attorney for appellant R.R. (Theodore J. Baker, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Gilbert G. Miller, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of
counsel; Delia A. De Lisi and Paul E. Minnefor, Deputy Attorneys General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
This opinion addresses consolidated appeals challenging a judgment of guardianship on the ground that the Division of Child Protection and Permanency (Division) failed to establish that termination of parental rights is in the best interests of the children as defined in N.J.S.A. 30:4C-15.1(a). The best interests of four children are at issue. For the reasons that follow, we affirm the terminations.
Defendant R.R. is the mother of all four children — two sons, Jim and Dan, born respectively in 2008 and 2010, and two daughters, Carol and Zoe, born respectively in 2011 and 2012. D.W. is the father of Jim and Dan, and M.J. is the father of Carol and Zoe. Although the respective rights of all three parents were terminated, only R.R. and D.W. appeal.
We have used fictitious names to refer to the parties' children.
The Division notes, correctly, that R.R.'s notice of appeal challenges the termination of her parental rights to her sons only. As the Division and the Law Guardian have had the opportunity to address all four children and are not prejudiced by the underinclusive notice of appeal, the interests of justice warrant consideration of all the issues raised.
The Division first had contact with R.R.'s family in 2009 but determined that there was no reason to intervene. The Division was not involved with the family again until R.R.'s third child, Carol, was born. The hospital reported that R.R. had no prenatal care and had asked that M.J., who was arguing with her about bringing one of the boys to the hospital with her, be barred from the maternity ward.
Upon investigation, the Division developed a plan to provide services, out of concern about R.R.'s temporary housing arrangement. At that time, M.J. was not living with R.R. She and the three children were living with a friend in a one-bedroom apartment that was not equipped with enough beds. Although the Division secured suitable beds, R.R. left that apartment within a month. Consequently, she, Jim, Dan and Carol were homeless.
The Division had previously helped R.R. when she had no housing. On May 25, 2011, R.R. contacted the Division about her current problem with homelessness. She wanted to live with the children in the apartment of M.J.'s sister, but the Division refused to approve that plan because M.J.'s sister's children had been removed from her care. The Division did, however, provide alternate housing — a placement in Hope House, a shelter for families.
R.R. left that placement on May 31, 2011. A week later, on June 7, Hope House discharged the family and notified the Division. R.R. subsequently placed phone calls to and visited the Division's office after leaving Hope House, but she gave the Division misinformation about where she and the children were living until June 15, 2011. By June 15, the woman with whom R.R. had claimed to be living told the Division that R.R. had not stayed with her since March. Additionally, R.R.'s mother had reported that R.R.'s sons had been living with her since R.R. left the shelter, which is not what R.R. had told them. Confronted with those accounts, R.R. acknowledged that she had left her sons with her mother and taken Carol to live with M.J. and his sister in an apartment in Jersey City that had no electricity. She chose this option despite the Division's prior refusal to approve her children living in the home of M.J.'s sister.
By June 15, the Division had also learned that Jim, who was then three years old, had been to the doctors only once and Dan and Carol had not been at all. Despite the Division's direction about taking the children to a doctor, R.R. did not. Nor had R.R. done anything to secure housing. Indeed, she acknowledged missing an appointment to arrange for public assistance with housing.
As a consequence of R.R.'s neglect of her children's need for shelter and medical care, the Division removed the children from her custody and care on June 15, 2011. Although the boys were living with R.R.'s mother, who was willing to care for them, she was having difficulty doing that. There were several contributing factors, including the grandmother's poor health, the smallness of her apartment and R.R.'s failure to give her the food stamps she was receiving.
Following the removal, the Division placed the children in foster care. Their fathers were not available. M.J. was living in his sister's apartment with R.R., and the Division had not found D.W.
The Division located D.W. after the removal. He was living with his godmother and receiving social security benefits, and wanted to care for Jim and Dan. Accordingly, the Division placed the boys with him, but that placement failed within a week. By June 20, 2011, D.W.'s godmother and he had argued and she directed him to leave. When D.W. left her home, he left the boys behind and did not even give his godmother a way to get in touch with him. Three days after his departure, the godmother reported it and her inability to contact D.W. to the Division.
The Division left the children with D.W.'s godmother until June 27, when she brought Jim to the Division and professed her inability to care for him. Jim was feverish and had an abscess on his arm that required treatment with antibiotics.
Because of D.W.'s apparent abandonment of his sons, the Division removed Jim and Dan from his custody and care. Within three days of their removal, the boys were placed with a foster father, C.S. They have been living with C.S., a medical doctor who is equipped to deal with the boys' needs, including Jim's behavioral problems, since June 30, 2011.
The Division promptly commenced efforts to address the problems that led to removal with the goal of reuniting the family. The Division arranged for an evaluation of R.R.'s needs in July 2011. Based on testing and a clinical interview, the psychologist, Dr. Robert Kanen, determined her intelligence level was in the borderline range — the lower two percent of the general population. Dr. Kanen found R.R. to be "very dependent, helpless, and [she] experiences anxious periods and prolonged depressive moods." In his opinion, she was "likely to be overwhelmed by child care demands and daily life," could "not provide her children at this time with a permanent, safe, and secure home," and was "likely to need significant help to function and parent her children."
The Division's efforts to assist M.J. are not discussed because M.J. does not challenge the termination of his parental rights.
--------
Dr. Kanen recommended "individual psychotherapy to help [R.R.] with chronic, moderate depression." He suggested that the therapist address her "self-defeating behavior, feelings of helplessness, chronic depression and avoidance of personal responsibility."
D.W. did not appear for his evaluation in July. D.W. also missed a second appointment for a psychological evaluation in October 2011, and appointments for court-ordered drug assessments in November 2011 and February, March and April 2012.
R.R. took very little advantage of services the Division offered her. In September 2011, R.R. was referred to Dr. Lidia D. Abrams, a licensed psychologist, for counseling. R.R. met with Dr. Abrams three times but never returned. R.R. was scheduled to participate in a parenting program operated by the C-Line Counseling Program in October but never attended. She was also enrolled in a training program at Drake Business College, which she did not complete.
R.R. gave birth to Zoe, her fourth child and M.J.'s second, in April 2012. She had not received prenatal care, and neither M.J. nor R.R. were in a position to provide a home for the newborn. They were living in a rooming house that did not allow children.
The day after Zoe's birth, R.R. and M.J. suggested the Division place her in Georgia with M.J.'s father, B.J., and M.J.'s sister, J.J. B.J. advised the Division that he would help R.R. and M.J. move to Georgia, and he and J.J. asserted their willingness to take all four of R.R.'s children. D.W. opposed any plan that would involve his sons living in Georgia with M.J.'s family, but the Division proceeded with the process of obtaining approval for placing all four children in Georgia that month.
In the absence of a present alternative, Zoe was placed with her sister Carol in the foster home where Carol had been living for one month. That foster home was Carol's second placement since her removal from her parents' custody in June 2011.
The Division continued its efforts to provide services to R.R., M.J. and D.W. after Zoe's birth. The parents, however, were not willing participants.
Despite D.W.'s multiple positive tests for PCP and marijuana and multiple instances of his declining drug testing and acknowledging drug use instead, he failed to complete either of the two drug programs the Division arranged for him. At one point, he claimed to be participating in a drug program he arranged himself, but some of the instances in which his drug use was confirmed or acknowledged occurred during that period. D.W. never submitted to a psychological or bonding evaluation despite three opportunities, and he never completed parenting skills programs arranged for him. From July 2011 through December 2012, D.W. saw his sons four times.
Dr. Kanen evaluated R.R. a second time in June 2012. She and M.J. were still living in the rooming house. On this second round of testing, Dr. Kanen determined her intelligence was lower than ninety-nine percent of the general population and detected the same deficits in her reasoning skills, memory and judgment. He also found R.R. lacking in alertness to her surroundings, a deficit that, along with memory problems, left her "very vulnerable for errors of omission and commission" that would put her children at "substantial risk of physical injury" in her care. In his opinion, she had limited capacity to benefit from parenting classes, overcome her deficits or improve her poor judgment. He concluded that R.R.'s children would be exposed to an unnecessary risk of harm if returned to her care. In short, R.R. had not made any progress and her prognosis was poor.
The same day, Dr. Kanen conducted bonding evaluations. He found nothing other than an impaired attachment between R.R. and her sons and R.R. and Carol. In his opinion, Zoe had no attachment with R.R. whatsoever. He concluded that none of the children would suffer serious and enduring harm if permanently separated from R.R.
Dr. Kanen's second report included no recommendations for additional services. Nevertheless, the Division attempted to provide psychotherapy as the doctor had initially recommended. Four appointments were scheduled in July and August 2012, but R.R. did not attend any. The Division referred her to another program for psychotherapy, but R.R. missed her first two appointments and was discharged for non-attendance in November. The Division also provided vocational training that R.R. did not complete.
Testimony in the guardianship trial was taken on three days in February 2013. Dr. Kanen, C.S., the boys' foster father, and a caseworker testified for the Division. Dr. Kanen's testimony was consistent with his reports. During his testimony, C.S. described Jim's special needs and the various therapies he was receiving to address his behavioral, speech and motor skills problems. C.S. also discussed his interest in doing what he could to continue the boys' contacts with their siblings and biological parents if he were permitted to adopt Jim and Dan. C.S. described his significant connections with Georgia and his interest in and ability to move to Georgia in the near future.
Dr. Kanen, who evaluated the bond between C.S. and Jim and Dan, found it to be strong and positive. In his opinion, severance of that bond would cause the boys strong and enduring harm.
The bond between Carol and Zoe and either B.J. or their foster parents was not evaluated. Neither B.J., his daughter J.J., nor the foster parents who had been caring for them testified. The Division's caseworker, however, testified that B.J. and the foster parents wanted to adopt the girls if they were freed for adoption. As previously noted, the Division's plan at the time of trial was for adoption by B.J. in Georgia. Although B.J. was initially interested in serving as the guardian under a Kinship Legal Guardianship arrangement, N.J.S.A. 3B:12A-1 to -7, but at the time of trial there were two options for Carol and Zoe to be adopted and placed together.
The Division has an obligation to prove, by clear and convincing evidence, that termination of parental rights is in the best interests of the children under the four-pronged standard set forth in N.J.S.A. 30:4C-15.1(a). Reviewing courts afford significant deference to a trial court's determination in these cases. Reversal is warranted only if the judge's conclusion rests on a misapplication of the law, is not supported by substantial credible evidence or is so clearly erroneous as to require intervention "to correct an injustice." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). Having considered the arguments D.W. and R.R. present in light of those standards, we determine that there is no basis for us to intervene here.
D.W., but not R.R., contends that the Division failed to establish the first prong of the best interests standard. "Under prong one of the best-interests test, [the Division] must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" Id. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)); see N.J.S.A. 30:4C-15.1(a)(1). Proof of actual irreparable impairment attributable to neglect or inattention is not required — a clear threat of such harm is enough. F.M., supra, 211 N.J. at 449; N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
The trial judge concluded that the Division established D.W.'s harmful neglect by his continuing inability to shelter the children. D.W., like R.R., had not provided shelter for his sons prior to their removal. Indeed, when D.W. assumed that responsibility after the boys' removal from R.R.'s care, he left them with his godmother without even giving her a way to reach him. Moreover, there was substantial evidence of the basic medical treatment and therapy Jim needed and did not receive and the deleterious impact of that neglect on the child.
To establish the second prong of the best interests standard, the Division had to establish the parents' unwillingness or inability to eliminate the harm facing the child or to give the child a safe and stable home under circumstances in which delay of permanency adds to the harm. N.J.S.A. 30:4C-15.1(a)(2). That 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 . . . ." Ibid.
The judge determined that R.R.'s cognitive limitations left her unable to care for any of the children. N.J.S.A. 30:4C-15.1(a)(2). The judge noted R.R.'s poor judgment in leaving Hope House and inability to do what was necessary to maintain her public assistance. That was the harm that led to the children's removal, and R.R. remained unable or unwilling to address it.
While the judge said little about D.W., his inability and unwillingness to make himself available to his sons and address his drug problem was too apparent to require extensive comment. Simply put, D.W. made no effort to act as a parent or remedy whatever conditions stood in his way of acting as a parent.
In K.H.O., our Supreme Court explained that the second prong of the best interests standard "focus[es] on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development." 161 N.J. at 352. There is no evidence of that sort of effort here on the part of either R.R. or D.W.
With respect to R.R.'s and D.W.'s sons, the judge also noted the harm the boys would endure if separated from C.S. That finding was well-supported by Dr. Kanen's testimony.
The judge also found the Division's efforts adequate to satisfy its obligation under the third prong of the best interests standard. N.J.S.A. 30:4C-15.1(a)(3). This provision 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 the court to "consider[] alternatives to termination of parental rights." Ibid. We have discussed the Division's efforts above at length and agree that the Division did all that could be done given the parents' lack of effort.
The judge declined to accept defendants' claim that this was a case in which the problem was poverty, which the Division could and should have addressed by giving them the stipend received by foster parents. Given the opportunities R.R. and D.W. had to care for their children and the expert evidence, the Division's efforts were properly focused on the source of the parental unfitness while keeping the children safe. As the judge found, the source of the problem in this case was not simply poverty. R.R. had custody of the children in Hope House, which provided a path to housing assistance, and she left to be with M.J. D.W. subsequently had custody of their sons in his godmother's home and left them.
Finally, the judge found that termination of R.R.'s rights to her four children and D.W.'s rights to his sons would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The evidence adequately supported, if not compelled, that determination. Neither parent was in a position to care for the children in the foreseeable future; none of the children had a secure bond with either parent; and both the boys and girls had a prospect for a permanent placement with adults who were in a position to meet their needs, which their parents unfortunately could not do.
R.R. argues that the evidence of B.J.'s commitment to adopting her daughters was inadequate. This argument has no merit for several reasons. First, where adoption is an alternative, neither long term foster care nor Kinship Legal Guardianship is an option. See generally N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510-11 (2004) (discussing the statutes and the importance of permanency). Second, given R.R.'s poor prognosis, the age of her daughters and the Division's efforts there was no evidence that additional delay of permanency would do the children any good. Care by R.R. in the foreseeable future was not a realistic option.
Having considered the parents' respective objections to the judge's findings, we conclude that they lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E). The judgment is based on findings of fact that are adequately supported by evidence, R. 2:11-3(e)(1)(A); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), is not wide of the mark, F.M., supra, 211 N.J. at 448, and it is not otherwise a product of an abuse of discretion or an injustice.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION