Opinion
DOCKET NO. A-6052-11T4
06-20-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF M.J.T., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.J.T. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-31-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lisa Puglisi, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor M.J.T. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant J.T. appeals from a June 18, 2012 judgment of guardianship entered by the Family Part terminating his parental rights to his then two-year-old son, M.J.T. (Mark). Defendant contends that plaintiff New Jersey Division of Youth and Family Services (the Division) failed to prove by clear and convincing evidence the requisite statutory factors to establish that Mark's best interests would be served by terminating his parental rights. Mark's mother, C.B.T. (Carol), made an identified surrender of her parental rights to Mark in favor of her maternal aunt, P.L. (Paige), on March 19, 2012. The Law Guardian supports the termination of defendant's parental rights.
To protect the confidentiality of the parties, we will use fictitious names for the parents and children referenced in this opinion.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
In a cogent oral opinion, Judge Harold U. Johnson, Jr., addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law, and concluded the Division had proven its case by clear and convincing evidence. After careful review of the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record, and, therefore, should not be disturbed on appeal. Accordingly, we affirm, substantially for the reasons stated by Judge Johnson in his oral opinion issued on June 18, 2012.
I.
We derive the following facts from the trial record. Defendant and Carol began their relationship in 2006. At that time, defendant was already the father of two children, J.T. (Jane) born in 2005 and N.T. (Nick) born in 2006. When Carol became pregnant in 2008, defendant assumed that he was the father. On October 12, 2008, Carol gave birth to S.T. (Scott). Two days later, the hospital where Carol delivered contacted the Division and reported that a psychiatrist had evaluated Carol and found her incapable of caring for her baby due to mental health issues, including bipolar disorder and lack of compliance with medication.
Carol is classified as developmentally disabled and has been diagnosed with bipolar disorder with depressed mood, adjustment disorder with depressed mood, panic disorder and intermittent explosive disorder.
Based on the belief that defendant was Scott's father, Scott was released to his care, to reside with him, his mother and his other two children. This arrangement was short-lived, however, as a Division case worker visited defendant's home on October 17, 2008 and found that defendant had left five-day-old Scott home alone. Defendant claimed that he had only left Scott alone for a minute or so to pick up his other children from the corner bus stop. The Division took immediate action to remove Scott, along with the other two children, from defendant's custody. The Division placed Scott with Paige and her husband.
A paternity test later determined that defendant was not Scott's father.
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Defendant and Carol married the following month. On December 1, 2008, Dr. Roger T. Barr conducted a psychological evaluation of defendant. Dr. Barr recommended relationship counseling for both parents, citing Carol's "signs of major psychopathology" and defendant's failure to recognize them as "grave issues." Defendant rejected any notion that Carol's psychological issues posed any problem.
On January 14, 2008, Dr. Edward Baruch completed a psychiatric evaluation of defendant; he listed "adjustment disorder with depressed mood" and "alcohol abuse" as his Axis I diagnostic impressions, and recommended counseling. During the evaluation, defendant noted that he was unemployed and had been living with his mother for almost three years.
Carol and defendant were then both referred to Carol Lang, a professional counselor and marriage and family therapist. Defendant started seeing her on January 23, 2009, and Carol a week later. Citing "their respective poor levels of psychological functioning," Ms. Lang observed that marital counseling would be needed, as she found "neither partner . . . capable of sufficient self-control nor recognition of their own contribution to their ongoing individual, marital, parental, and familial problems."
Carol became pregnant with Mark in early 2009. On June 11, 2009, Ms. Lang told the Division that Carol reported verbal and physical abuse by defendant. On July 2, 2009, a Division caseworker reported that Carol called the Division "very upset and screaming at the top of her lungs." She said that defendant "forces himself on her" and "talks to her like she was trash[.]"
Defendant and Carol were referred to Community Treatment Solutions on August 9, 2009 for their reunification program. However, defendant was discharged from the program one year later because of his failure to demonstrate progress and for his abusive behavior toward the staff. On September 25, 2009, Ms. Lang called the Division to report an incident in which defendant "was out of control," "loud," and "insultive," and stated that it would be "very dangerous" for defendant and Carol to be together. Ms. Lang discharged defendant from therapy on October 15, 2009, because he missed sessions and was verbally abusive and threatening to her. Ms. Lang noted that defendant never acknowledged responsibility for his angry outbursts, and denied responsibility for the neglectful behavior that caused the Division to remove Scott and his other two children.
On October 2, 2009, Carol told a Division caseworker that defendant "talks to her like she is dirt . . . called her stupid and said she was dumb and retarded." She showed the caseworker bruises on her back and reported that defendant tried to push her down the stairs. Carol stated that defendant sometimes hit her, and she was "tired of feeling afraid of what [was] going to happen to her and her children."
Dr. Pamela Kane conducted a parenting assessment evaluation with defendant on October 21, 2009. Defendant denied having a substance abuse problem and reported being sober for ten months. Dr. Kane indicated a high risk of domestic violence due to Carol's mental and cognitive issues and defendant's history of being unable to deal with frustration or disappointment. She recommended individual therapy for defendant and parenting education concerning child development and reasonable expectations.
On November 5, 2009, a caseworker received a call from a social worker at the crisis center in Bridgeton. The social worker reported that Carol was being discharged back to her home with defendant, but was very concerned because when Carol first arrived, "she was upset and screaming that she had been beaten up by her mother in law and her brother," and "made inference to the fact that her husband had also been involved."
Following Mark's birth on December 30, 2009, the Division determined that it was unsafe for him to go home with either parent. The Division completed an emergency removal of Mark on January 5, 2010, and filed an application with the Family Part for his custody, care and supervision. The court granted the Division's application, finding that such action was necessary to avoid risk of harm to the child. The judge placed Mark in the same home as his brother, Scott, and ordered continued services for the parents.
At trial, the Division presented the testimony of Dr. James Loving, who completed psychological and bonding evaluations of each parent. Dr. Loving advised against reunification due to significant risks of child maltreatment. "These risks," he stated, "are tied to four main areas: specific risk for exposing children to domestic violence (DV); more generalized risks related to poor anger control; poor judgment in terms of parenting decisions; and possible return to substance abuse." Dr. Loving noted that defendant had been accused of domestic violence by at least three other partners. Dr. Loving cited defendant and Carol's "history of tremendous conflict," and believed that defendant squandered the "ample opportunity to address this area of risk through treatment," demonstrating an inability to take responsibility for his role in their destructive relationship.
Regarding defendant's poor anger control, Dr. Loving referred to various reports and records documenting his "angry, hostile, aggressive, or otherwise inappropriate behavior during the course of his family's lengthy" involvement with the Division. Dr. Loving claimed that defendant revealed "no insight or responsibility-taking" regarding his anger control problems during his evaluation.
Dr. Loving found that defendant also demonstrated poor parenting judgment in the past, most exemplified by the incident leading to the removal of Scott. According to Dr. Loving, defendant still does not recognize the safety issues involved with leaving Scott unattended. Dr. Loving also stated that defendant showed "a poor recognition of his wife's parenting- related deficits." Despite her clear mental and cognitive deficits, defendant "allowed his wife to watch his older children, and he now feels that she would be a fine parent to any of their children."
Finally, Dr. Loving cited defendant's earlier history of alcohol abuse. Although Dr. Loving acknowledged that defendant had been substance-free for two years, he said that defendant remained at significant risk of returning to his old behavior once he is no longer under the scrutiny of the Division or the Family Part. "His comments," Dr. Loving concluded, "made clear that he does not see his alcohol history as problematic . . . his main motivation for remaining substance free is so that professionals 'can't make an issue out of' his drinking."
The Division also presented the testimony of Kelly Hunt, the Division's adoption case worker assigned to Mark's case. She explained the progress of the case and detailed the various services that the Division provided to defendant.
In his oral opinion, Judge Johnson reviewed the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and determined that termination of defendant's parental rights was in Mark's best interests. Considering the first prong, the judge rejected defendant's claim that the Division did not prove that he ever harmed any of his children. At the time Scott and defendant's two older children were removed, defendant had left Scott home alone, and all three children were living in deplorable conditions. Once Mark was born, defendant could not provide for his child's health, safety, or development due to his poor parenting judgment, the risk of exposure to domestic violence, and the possibility of defendant's relapse into alcohol abuse. The record showed that defendant was unable to provide a safe and stable home for Mark, or otherwise provide for him.
As for the second prong, while defendant participated in services provided by the Division, the judge found that he benefitted little from them. His failure to make significant progress despite all the services provided showed that he was unable or unwilling to change and provide a safe and stable home. A subsequent psychological evaluation did not find any major psychological problems but found that his failure to recognize Carol's cognitive issues presented a grave issue. Defendant attended counseling but was discharged after about a year from two programs for failure to demonstrate progress. Defendant's therapists also noted that he never acknowledged responsibility for his angry outbursts or his action that led to the removal of Scott. Moreover, defendant did not show any financial stability. The judge therefore found clear and convincing evidence that defendant is either unwilling or unable to provide Mark with a safe and stable home and that delay will add to the harm.
The judge found that the Division satisfied the third prong by making reasonable efforts to provide defendant with services to help him address his issues, including psychological and psychiatric evaluations, and services and counseling, as recommended.
In determining that the Division satisfied the fourth prong of the best interests test, because termination of defendant's parental rights will not do more harm than good, the judge credited Dr. Loving's opinion that the child would be harmed by a continuing lack of a permanent family situation. Specifically, Dr. Loving stated that Mark exhibited a "strong, positive, and healthy attachment[] to" his foster parents, and explained that if Mark were removed from their care, he would sustain "the loss of his primary parent figures, not to mention the loss of stability and safety that he has experienced while living in their home for the duration of his young life."
II.
A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:
(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.
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
Termination of parental rights permanently cuts off the relationship between children and their biological parents. . . . When the biological parents resist the termination of their parental rights, the court's function ordinarily will be to decide whether the parents can raise their children without causing them further harm. . . . The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child.
[In re Guardianship of J.C., 129 N.J. 1, 10 (1992).]
The Supreme Court has recognized, however, that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999).
In reviewing Judge Johnson's decision applying the best interests test, we have a very limited role. We do not decide this case ab initio. Rather, we defer to the trial judge's factual determinations unless those findings "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). We do not disturb the Family Part's factual findings so long as "they are supported by adequate, substantial and credible evidence." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citation omitted). And we owe special deference to the trial judge's credibility determinations and to his expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
Having reviewed the record in light of those standards, we discern no basis to question Judge Johnson's determination that terminating defendant's parental rights is in the child's best interests. In particular, we find no basis to disturb his factual findings or his decision to credit the opinions of Dr. Loving and the Division case worker. See D.M.H., supra, 161 N.J. at 382-83 (1999). The judge's legal conclusions follow logically from his factual findings, which are supported by sufficient credible evidence. R. 2:11-3(e)(1)(A).
Defendant argues that he has a bond with the child, he now has an apartment and a job, and he is ready to parent his child. We are not persuaded that these contentions warrant reversal. As Judge Johnson noted, defendant was evicted from his previous home only ten months before trial for non-payment of rent. Defendant further acknowledged child-support arrears of over $5,000 and that he cannot afford to pay both rent and child support.
Defendant also alleges that the Division did not advise Paige, Mark's resource parent, about kinship legal guardianship (KLG) and that Judge Johnson did not sufficiently consider KLG as an alternative to termination. This claim lacks merit as KLG is only appropriate where adoption "is neither feasible nor likely[.]" N.J.S.A. 3B:12A-1(c). Here, Paige has already adopted Mark's brother, and wants to adopt Mark as well.
The law does not require the child to remain in limbo indefinitely, in the hope that defendant will eventually get his life together to the point where he can act as his parent. To the contrary, the law favors giving the child a stable and permanent family placement. See N.J.S.A. 30:4C-15(d); K.H.O., supra, 161 N.J. at 357-58 (1999). The child is living with maternal relatives who are ready to adopt him, and that prospect is in his best interests.
III.
Because counsel failed to object to the entry of various documents in evidence, defendant asserts that his attorney's performance was deficient to the extent that he was denied effective assistance of counsel. Alternatively, he argues that the admission of these items into evidence constituted plain error under Rule 2:10-2, and as such, the matter warrants reversal. We disagree.
Initially, defendant's ineffective assistance argument fails as these claimed "deficiencies" do not satisfy the test adopted by our Supreme Court in New Jersey Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting and applying the two-part test for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), in cases involving termination of parental rights). This test requires that
(1) Counsel's performance must be objectively deficient — i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense — i.e., there must be "a reasonable probability that but for counsel's professional errors, the result of the proceeding would have been different." [Id. at 307 (quoting Strickland, supra, 466 U.S. at 693, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).]
In determining whether counsel's performance was deficient, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695). Here, defendant's ineffective assistance claim fails to satisfy either prong of Strickland, as the admitted evidence he claims his attorney should have objected to falls within well-established exceptions to the hearsay rule. Thus, assuming defendant's attorney had objected, we would have no reason to reverse based on the trial judge's evidentiary rulings, which we review for an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010).
Rule 5:12-4(d) allows the Division to submit into evidence reports prepared by staff personnel or professional consultants "provided the documents satisfy the requirements of the business records exception [to the hearsay rule], N.J.R.E. 803(c)(6) and 801(d)." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012); see also N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010). Pursuant to N.J.R.E. 803(c)(6), a business record is:
A statement contained in writing or other record of acts, events, conditions, . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, [is admissible] if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
Further, N.J.R.E. 801(d) provides that a "'business' includes every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies."
Under these evidence rules, a party seeking to introduce a hearsay statement under the business record exception
must demonstrate that "the writing [was] made in the regular course of business," the writing was "prepared within a short time of the act, condition or event being described," and "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence."
[New Jersey Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]
Moreover, N.J.R.E. 803(c)(6) expressly subjects the admissibility of opinions and diagnoses contained in otherwise admissible business records to the added requirements of N.J.R.E. 808, which provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of
the opinion, tend to establish its trustworthiness.
Defendant asserts that the judge erred in admitting certain records and reports from the Division's case file, and that his attorney deficiently failed to object to their admission.
The Division contact sheets, prior evaluations and Ms. Lang's progress notes are admissible pursuant to New Jersey Court Rule 5:12-4(d) as they are reports by staff personnel or professional consultants. Defendant has failed to show that these particular documents were prepared in such a way to indicate they are not trustworthy. The purpose of admitting the evaluations by Dr. Barr, Dr. Baruch and Dr. Kane, was to explain their concerns and recommendations. A complete reading of Judge Johnson's decision makes it clear that those prior evaluations were included in the history of the case to indicate the services recommended and provided to defendant. Although the judge cites concerns expressed by the evaluators, the judge did not cite any specific diagnoses made of defendant in those evaluations. In his oral opinion, Judge Johnson clearly indicated that he was relying on the findings and opinions of Dr. Loving, and the testimony of Ms. Hunt.
Defendant's ineffective assistance claim is not borne out by the record. Defendant cannot show that there is a reasonable probability that, but for counsel's failure to object to specific records, Judge Johnson would have not terminated his parental rights.
Defendant further argues that the judge based his decision on impermissible hearsay, as the claims of domestic violence were made by Carol, who did not testify. We do not find this argument persuasive, as the record contains ample evidence to show defendant's violent and abusive tendencies, including his own admissions and his actions before the staff of agencies where the Division sent him for treatment. Moreover, defendant himself admitted to Dr. Loving that he was charged with assault on two previous occasions and acknowledged that three other women had filed domestic violence complaints and obtained restraining orders against him. Defendant also admitted to acts of domestic violence during his testimony at trial. As such, there was other evidence in the record to support a finding of defendant's history of domestic violence.
Defendant's remaining appellate 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