Opinion
DOCKET NO. A-2506-11T3 DOCKET NO. A-2508-11T3
04-22-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.J. and I.G., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF I.G., III, a Minor.
Ryan T. Clark, Designated Counsel, argued the cause for appellant S.J. (Joseph E. Krakow, Public Defender, attorney; Mr. Clark, on the brief). Markis M. Abraham, Designated Counsel, argued the cause for appellant I.G. (Joseph E. Krakow, Public Defender, attorney; Mr. Abraham, on the brief). Christian A. Arnold, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka R. Felipe, Deputy Attorney General, on the brief). Cory H. Cassar, Assistant Deputy Public Defender, argued the cause for minor I.G., III (Joseph E. Krakow, Public Defender, Law Guardian, attorney; Mr. Cassar, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino, and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-48-11.
Ryan T. Clark, Designated Counsel, argued the cause for appellant S.J. (Joseph E. Krakow, Public Defender, attorney; Mr. Clark, on the brief).
Markis M. Abraham, Designated Counsel, argued the cause for appellant I.G. (Joseph E. Krakow, Public Defender, attorney; Mr. Abraham, on the brief).
Christian A. Arnold, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka R. Felipe, Deputy Attorney General, on the brief).
Cory H. Cassar, Assistant Deputy Public Defender, argued the cause for minor I.G., III (Joseph E. Krakow, Public Defender, Law Guardian, attorney; Mr. Cassar, on the brief). PER CURIAM
Defendants I.G. and S.J., the biological parents of I.G. III ("Ivan") born in March 2010, appeal separately from the December 14, 2011 judgment terminating their respective parental rights to Ivan. On these appeals, which we have consolidated, defendants contend that the Division of Youth and Family Services (Division) did not prove by clear and convincing evidence the four prongs of the termination statute. The Law Guardian supports the termination on appeal, as it did before the trial court.
Fictional names are used to protect the privacy of the children and for ease of reference.
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 as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of defendants' parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.
I
S.J. (the mother), born in 1983, and I.G. (the father), born in 1982, have three children together: A.M.G. ("Alyssa"), born in March 2007; A.G. ("Amy"), born in May 2009; and Ivan.
S.J. also has two children from prior relationships, both of whom now live with their maternal grandmother in Puerto Rico and are not at issue in this appeal.
A.
The family first came to the attention of the Division in May 2009, after it received a referral, the allegations of which were later found to be unsubstantiated, stating that S.J. had admitted to using heroin and marijuana during her pregnancy with Amy. S.J. tested negative for all drugs when she gave delivery, yet Amy was born prematurely and was treated for methadone withdrawal. At the time, S.J., I.G., Alyssa, and H. (one of S.J.'s other children) were residing in a home in Paterson S.J. and I.G. were both unemployed. A Division worker met with S.J. and I.G. at the hospital the day of the referral. According to the Division, S.J. admitted to a prior drug history, and that she had recently relapsed. S.J. further stated that she sought treatment and began a methadone treatment program. S.J. and I.G. were referred for drug and alcohol assessments, and S.J. was referred to an intensive outpatient program.
S.J. then attended a substance abuse assessment with Preferred Children's Services. She admitted to a long history of substance abuse, including alcohol, marijuana, heroin, cocaine, and crack. S.J. had completed a long-term recovery program from 2005 to 2008, but then relapsed in 2008 when she moved to Paterson. In December 2008, when she learned she was pregnant with Amy, S.J. sought treatment from the Paterson Counseling Center. However, she continued using heroin until February 2009, when her methadone dosage was increased.
I.G. also attended a substance abuse assessment in May 2009, and was then referred for an extended assessment. In July 2009, a Division caseworker met with S.J. and I.G., and provided S.J. with a bus pass and reminded I.G. to attend his substance abuse assessments. Nevertheless, I.G. failed to appear for three consecutive substance abuse assessments in July 2009. In August 2009, I.G. apparently left the Paterson home and moved to New York to live with his mother for work purposes.
In September 2009, a Division caseworker sent I.G. a letter informing him of the Division's concern about his non-compliance with the substance abuse assessments. A Division caseworker later visited S.J.'s home, where I.G. also was staying at the time. I.G. "came out of the bedroom yelling at the [case]worker" and stated he was "tired of the nonsense." He also expressed that he did not live with [S.J.] and continues to live in [New York] . . . [and] did not understand why he needs to comply with a . . . drug assessment." On October 9, 2009 S.J. tested positive for cocaine and opiates. On October 16, 2009, I.G. tested positive for cocaine and opiates, and again on October 20 he tested positive for opiates.
On October 20, 2009, the Division filed an Order to Show Cause seeking custody of Alyssa and Amy. Consequently, on October 21, Alyssa and Amy were removed from the parents' custody and placed in a foster home. The court ordered S.J. and I.G. to comply with all recommendations of the substance abuse assessments and complete a parenting assessment.
On October 26, 2009, the Division sent a request to the New York State Registry to explore the paternal grandmother (E.N.) as a potential caretaker for Alyssa and Amy. The Division also referred I.G. to the Challenge Program for treatment. On October 30 I.G. informed an assessment counselor of his continued use of heroin, and was referred for detoxification treatment at Bergen Regional Medical Center, where he was admitted on November 4, 2009. However, I.G. left the same day, "against medical advice," because he claimed there were no beds.
On November 10, 2009, Beatrice Reyes, a Division caseworker, received a call from S.J.'s counselor at the Paterson Counseling Center, advising her that S.J. stopped participating in counseling, and failed to submit to urine screens. On November 18, S.J. was ordered to attend substance abuse treatment, and I.G. was ordered to complete psychological, psychiatric, and substance abuse evaluations.
Pursuant to the November 18, 2009 order, S.J. entered the Straight and Narrow Mommy and Me program in December 2009, and was given an anticipated discharge date of June 2010. On January 20, 2010, upon Straight and Narrow's recommendation, Alyssa was reunified with S.J. in the Straight and Narrow Program. It was further recommended that S.J. be granted overnight weekend visits with Amy.
In December 2009, I.G. was evaluated by Alison Winston, Ph.D. at the Division's behest. I.G. admitted to using cocaine and heroin for two to three months in the late summer and early fall. Dr. Winston noted her concern that I.G. was not engaged in any treatment, nor participating in Narcotics Anonymous. Subsequently, I.G. was referred to Eva's Village for residential treatment. However, he was discharged on January 10, 2010 because he "failed to comply with treatment." On January 6, 2010, I.G. provided a urine sample to the Division that tested positive for opiates. Additionally, at a February 4, 2010 substance abuse assessment, I.G. admitted to recently using heroin, and requested a referral for treatment. I.G. then entered into a twenty-eight-day residential treatment program at Turning Point, which he successfully completed on March 12, 2010.
In March 2010, S.J. gave birth to Ivan, and the hospital's referral stated that both S.J. and Ivan tested negative for all drugs. However, Ivan was born prematurely, was severely underweight, and was not breathing on his own. As a result, Ivan was not discharged from the hospital until April 20, 2010. Ivan was placed directly into a Special Home Service Provider (SHSP) foster home, where he has since remained. On March 23, 2010, the Division filed an amended complaint, also seeking custody of Ivan.
On March 25, 2010, S.J. and I.G. stipulated that "[S.J.] used heroin & cocaine at or about the time of the [Dodd] removal [October 19, 2009] in the presence of her children and to the detriment of her ability to care for [them]." The court ordered S.J. to attend substance abuse treatment, and both parents to submit to urine screenings, attend individual counseling, and attend parenting skills training.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.
On March 23, 2010, I.G. was referred for intensive outpatient substance treatment, five days per week, at Options Counseling. I.G. was admitted on April 1. However, he was discharged on July 7, because he "neglect[ed] to attend [the] program on a consistent basis. Attempts to reengage [I.G.] occurred on at least a weekly basis. [I.G.] did not respond to communication attempts." I.G.'s discharge summary indicated that his failure to attend the program was due to his residency in New York and financial inadequacies. However, the summary noted that I.G. collected welfare in New Jersey, and refused attempts by the program to secure him housing in New Jersey.
S.J., who was still enrolled in the Mommy and Me Program at Straight and Narrow, left that program on April 13, 2010. This was deemed a discharge from the program. S.J. was found later that day by Reyes at Eva's Village, a transitional living facility. Eva's Village was able to accommodate S.J., after Reyes spoke with the Director; this allowed S.J. to continue living with Amy.
At a compliance review hearing on April 14, 2010, S.J. and I.G. were both ordered to attend substance abuse treatment, submit to random urine screenings, attend individual counseling, and attend parenting skills training.
In May 2010, a Substance Abuse Initiative report indicated that S.J. tested negative for her last four drug tests. However, the report commented that she had "an extremely poor attitude in treatment . . . with poor participation . . . continued poor participation will result in her being referred to a more intensive inpatient program."
I.G. attended another substance abuse assessment in July 2010, during which he admitted prior alcohol, heroin, and cocaine use, but contended that he had been clean since January 2010. He was referred to the Challenge Program, where he was admitted on August 12, 2010. He was discharged on September 22, due to non-compliance. I.G. was re-admitted on September 27, but again discharged in early October for non-compliance. A Division contact sheet indicated that he had not given a urine sample since August 2010.
In August 2010, a social worker at Eva's Village indicated that S.J. "has shown improvement in her behavior and has been keeping up with all appointments and requirements." The social worker also recommended weekend overnight-supervised visits with Amy at Eva's Village. In September the social worker reported that S.J. was attending Narcotics Anonymous meetings, parenting classes, and domestic violence counseling. As of early October, the Division planned to request reunification of Amy with S.J., and to "work with returning [Ivan]."
Unfortunately, S.J.'s progress quickly halted. On October 12, 2010, S.J. was exposed by another group member at Eva's Village for missing her group counseling sessions for three prior weeks, and being late for her outpatient programs. In response, S.J. twice threatened physical force against the client who had divulged this information. On October 20, S.J. was discharged from Eva's Village because "[S.J.] has been consistent with displaying behaviors not consistent and conducive to treatment (violations of cardinal rules)." Alyssa was subsequently placed in foster care with Amy.
B.
A permanency order was entered on October 26, 2010. It listed, among other reasons, why it would not be safe to return the children home:
[B]oth parents have failed to complete a substance abuse program and both parents are homeless at this time. [S.J.] needs anger management, counseling, parenting. I.G. needs anger management, counseling, parenting. Both parents need to successfully complete a substance abuse program and maintain sobriety and need housing.
The order explained that termination of parental rights followed by adoption was the appropriate plan because "neither parent can currently care for the children safely due to unaddressed housing, substance and parenting issues." The order also indicated that the Division had "provided reasonable efforts to finalize the permanent plan, including reunification where appropriate by referring the parents to the following programs: Straight & Narrow, Paterson Counseling, Eva's Challenge, Turning Point, Bergen Regional, [and] Options, as well as psychological evaluations, psychiatric evaluations ([S.J.]), medication monitoring ([S.J.]), visitation, bus passes, housing referrals ([I.G.])." The court further ordered the removal of Alyssa from S.J.'s physical custody. Both parents were again ordered to attend substance abuse evaluations, submit to drug screenings, and attend individual counseling/anger management. Notably, the order also directed the Division "to pursue expedited interstate [study] as to [Ivan] and [Amy]."
On October 29, 2010, the Division referred S.J. for a substance abuse evaluation. S.J. then began attending Options for treatment. However, in December, S.J. tested positive for amphetamines and benzodiazipines, and she again tested positive for opiates, benzodiazipines, and methadone on January 3, 2011. At that point S.J. stopped attending Options.
In January 2011, Alyssa and Amy began living with their paternal grandmother, E.N., in New York. However, Ivan remained in the care of his foster family because E.N. expressed reservations about her ability to meet Ivan's substantial medical needs. Amy and Alyssa were able to attend day care while E.N. worked, but Ivan's considerable medical needs rendered day care inappropriate for him. Ivan was deemed "medically fragile." As noted, following his release from the hospital seven weeks after birth, Ivan went directly into a specialized home where the foster parents were trained to manage the high level of care that he needed. Ivan's foster parents have since arranged to provide speech, physical, and occupational therapy for him. Ivan also saw a neurologist, an ophthalmologist, and a feeding therapist.
In March 2011, S.J. expressed a desire for inpatient care, and sought welfare benefits because she would soon be homeless. S.J. further expressed her desire to reunify with her children. In April 2011, Joy Winnik, an adoption specialist with the Division, was advised that S.J. was admitted to a six-to-fifteen-month in-patient program. However, in May 2011, Winnik was informed that S.J. left Daytop "against the advice of [Daytop's] [c]linical [s]taff . . . [and] is no longer considered a resident of Daytop Village[.]"
In April 2011, I.G. was admitted to an in-patient program at the Daytop Program in Queens, New York. However, in May 2011, after having been rotated to a different residence at Daytop Village, I.G. left the program.
On June 9, 2011, S.J. enrolled in a non-intensive outpatient program at CIS Addiction. Winnik testified that S.J. did not complete that program because it apparently closed. S.J. failed to appear for court-ordered psychological evaluations with Robert Kanen, Psy.D. on June 29, 2011. Additionally, between June 30 and October 5, 2011, S.J. and I.G. missed ten of their weekly visits with Ivan at his foster home.
S.J. next enrolled in the Addiction Institute of New York in August 2011. In September she notified the Division that she had completed the program. However, when the caseworker called to confirm, she was informed that S.J. did not want to continue in the program, and had been referred to an outpatient program.
On September 29 and October 21, 2011, S.J. completed a psychological evaluation with Dr. Kanen. S.J. desired that E.N. take care of Ivan because his condition had improved. However, according to Dr. Kanen, S.J. "has no plan to care for the children on her own," and S.J. informed Dr. Kanen that "I'm having difficulty staying stable and in one place. Once I'm in a place, a couple of months, I just take off. My bipolar disorder and depression have me all over the place."
Also of import, the week before the trial, E.N. informed Winnik that she was now in a position to take Ivan into her care because her daughter (I.G.'s sister) stopped working in February 2011, and would be in a position to provide full-time care for Ivan.
C.
The guardianship trial was held on November 9 and 10, 2011. S.J. and I.G. voluntarily surrendered their parental rights to Alyssa and Amy to E.N. The Division then presented the testimony of two caseworkers, Reyes and Winnik, and the expert testimony of Dr. Kanen. The court also heard testimony from E.N., offered by S.J.'s attorney. The court admitted the Division's substantial record, which included expert reports, including psychological assessments of both parents by Dr. Winston, and the psychological evaluations and bonding evaluations performed by Dr. Kanen.
The only testimony offered by S.J. and I.G. at the trial was limited to discussion of their voluntary surrender of parental rights to Alyssa and Amy.
Dr. Kanen testified that S.J. told him she was on methadone when she gave birth to Ivan, and that her drug problem had disrupted her life. S.J. also told him she had been diagnosed with bi-polar disorder, which Dr. Kanen stated frequently co-occurs with drug abuse issues and is difficult to treat.
Dr. Kanen opined that S.J. "has some cognitive impairment", which he believed was partially attributable to her substance abuse. This impairment raised a concern about her ability to parent because Ivan has multiple developmental delays, and requires someone who can pay attention to his many needs. "If you have a child who has multiple developmental delays with a parent who has short-term memory deficits . . . there becomes a very high risk for errors."
As a result of his evaluation of S.J., Dr. Kanen concluded:
My opinion is at the present time she has severe parenting deficits. She's not able to provide [Ivan] with a permanent, safe, and secure home. My opinion was that returning [Ivan] to her care would expose [Ivan] to an unnecessary risk of harm. She's not adequately addressed her problems. And so she's got a long way to go.
Dr. Kanen testified that although S.J.'s recent enrollment in another treatment program was a "good step," it was not sufficient to change his opinion about her ability to parent. He further testified that S.J. "has to learn more about . . . the various developmental delays [Ivan] has and to learn what types of services he needs and then has to be responsible and dependable enough to follow through on those services."
Dr. Kanen indicated that given S.J.'s substance abuse history and her mental illness issues, it could require five years of sobriety before S.J. would be able to parent.
With respect to I.G., whom Dr. Kanen had also evaluated, Dr. Kanen first noted that I.G. initially failed to appear for his evaluation, and offered no explanation for his absence. When he did appear, I.G. was hostile during the evaluation and "would not give the address as to where he lives[.]" When discussing the services that the Division wanted I.G. to complete, Dr. Kanen described I.G. as "very, very angry," and that I.G. said "me and [the Division] don't get along." Dr. Kanen described I.G.'s demeanor while answering questions about his drug history as "very, very irritable and angry, very hostile." At one point during the cognitive testing I.G. "wouldn't continue. He . . . got so angry and he left."
On cross-examination, Dr. Kanen stated that "[i]n 500 evaluations . . . there might have been one other person that acted like [I.G. did]."
Although I.G. acknowledged that Ivan was born medically fragile, he "offered no plan to take care of the children on his own . . . he said he was waiting for medical records on [Ivan] and . . . indicated that [they would] give him an idea of . . . how much care [Ivan] required." Dr. Kanen concluded:
[I.G.] was so easily provoked in the evaluation . . . so irritable and so impatient. . . . [I]t's a behavioral sample of how he deals with what he consider[s] to be a stressful event. . . .
. . . [T]he fact that [Ivan's] functioning is impaired makes demands that a normal child doesn't present to parents. So a special needs child requires much more patience and sensitivity and sound judgment . . . than a normal child. It's . . . exponentially more difficult to take care of a special needs child.
. . . .
At the time I saw [I.G] I didn't think he had any ability to . . . to provide adequate parenting to the child. . . . [H]e had very, very limited ability to provide for the child.
Even assuming that I.G. also recently enrolled in another substance abuse treatment program, Dr. Kanen considered it "a positive first step but there's still a long road ahead." He stated his long-term prognosis for I.G. was "[v]ery poor" because:
[H]e's so unstable. He doesn't have a home. He's got psychiatric problems. He's got serious personality problems. He's . . . prone to angry outbursts. He's very unstable. He's got a substance abuse history[.] . . . All of those factors
combined he couldn't provide a child with a permanent safe and secure home.
Dr. Kanen next testified about the bonding evaluation he conducted between Ivan and his biological parents. He concluded "that there was no bond [between Ivan and his biological parents]. The child . . . does not see them as parental figures in any way. They're pretty much strangers to him[.]"
To the contrary, based on his bonding evaluation of Ivan and his foster parents, Dr. Kanen concluded that Ivan is:
attached and bonded to [his foster parents]. They've cared for [Ivan] since he was released from the hospital, so it was from the time he was approximately six weeks old. [Ivan] perceives them as his parents. He perceives them as the people who meet his needs and care for him every day of the week. And they're very committed to him and very knowledgeable and very capable of providing him with a permanent, safe, and secure home.
Concerning the effect of removing Ivan from his foster family, Dr. Kanen opined that:
you would be removing a child from the only parents he's known, so it could -- would be devastating to him. You would probably see regressions in the gains that he had made. It's likely to be very difficult [ ] to find somebody who is that committed in terms of multiple therapies and following through on those therapies at the home which is what the foster mother does. So my view is he would suffer serious harm if removed[.]Dr. Kanen noted that Ivan is old enough "to definitely know that [the foster parents] are the primary caretakers" and in light of Ivan's development and nervous system-based delays, removal "would be a shock to him." In contrast, Dr. Kanen did not think eliminating contact between Ivan and his biological parents would have any effect on him. Dr. Kanen reiterated that the harm resulting from removing Ivan from his foster parents would be "serious and enduring[.]"
Reyes, who is a permanency worker with the Division, testified about both parents' "minimal" compliance, and their multiple failed attempts at completing their respective substance abuse treatment programs. In addition, Winnik testified that she was at times unable to maintain contact with S.J. and I.G. Winnik also noted that both failed to attend certain appointments for psychological and bonding evaluations.
With respect to the parents' visitation with the children, Winnik noted that before Alyssa and Amy moved to E.N.'s home in New York, the visits were "pretty consistent." Thereafter, however, these visits became more "sporadic."
Winnik testified that Ivan is "globally delayed," and is still classified as "medically fragile." However, she also acknowledged that Ivan has not "been given any type of definitive diagnosis that would explain all of his delays[.]" According to Winnik, Ivan's needs are still the same as they have always been. Winnik testified that Ivan typically has five or six appointments every month.
Winnik acknowledged that E.N. recently approached her and "said that she was now prepared to fight for [Ivan] and . . . that her daughter would stay home and care for him." She noted, however, that prior to E.N.'s decision to come forward immediately prior to trial, E.N. never previously advised the Division that she was willing and able to provide full-time care to Ivan. As to her perception of E.N.'s ability to care for Ivan, Winnik stated:
I'm not sure if I would say we have any concerns for her, per se. What I have gotten from the conversations I've had with her is that she can't provide the type of care that's being provided in the other foster home as far as she would like — well, she would love to be able to care for him because that's her grandson but she also works and wasn't sure how she would meet like all of the needs of all of the doctors' appointments and . . . we didn't get into it specifically because she said . . . I can't do it right now[.]
Finally, Winnik testified that on multiple occasions, S.J. and I.G. failed to comply with the Division's requests for a urine screen. This most recently occurred on the day of their bonding evaluations. S.J. and I.G. also failed to complete the services that the Division recommended to enable them to provide a safe and secure home for Ivan.
E.N. testified next and explained that when she first inquired about having Ivan live with her, she was told that "he needed someone to stay home with him . . . because he couldn't go to daycare because he was not capable." She testified that she had wanted to have custody of Ivan from the beginning; however, because Ivan's medical needs prevented him from attending daycare, she would not be able to care for him due to her work schedule. E.N. testified that she requested a diagnosis of Ivan's condition and why he was unable to attend daycare, but that the Division only told her that Ivan was "fragile," and never offered her a further explanation.
E.N. also testified that through her independent relationship with Ivan's foster mother, Ivan visits twice a month, and during those visits he gets to see his sisters. E.N. also readily acknowledged that she witnessed a positive change in Ivan's condition through the care he has received from his foster family.
D.
After considering the testimony of these witnesses, the documentary evidence submitted, and written summations from the parties, the trial judge issued an oral decision on December 14, 2011. The judge found that the Division met its burden of proof by clear and convincing evidence as to all four prongs of N.J.S.A. 30:4C-15.1, and as a result, the judge terminated both defendants' parental rights. On appeal, I.G. argues that the Division failed to satisfy each of those prongs by clear and convincing evidence. S.J. acknowledges that she harmed Ivan, but disputes the Judge's findings on prongs two, three and four of N.J.S.A. 30:4C-15.1.
II
The law governing our analysis is well established. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 383 (App. Div. l998) (alteration in original) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The question for the court "focuses upon what course serves the 'best interests' of the child." Ibid.
In evaluating the best interests of the child, courts follow a four-prong standard, articulated in N.J. Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986) and codified in N.J.S.A. 30:4C-15.1(a). This standard allows for termination when the Division proves, by clear and convincing evidence, that:
(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 criteria are neither separate nor discrete. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (l993)).
The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because of the Family Part's special jurisdiction and expertise in family matters, we accord deference to the trial court's fact-finding and the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (l998). We are further obliged to defer to the trial judge's credibility determinations and the judge's "'feel of the case' based upon the opportunity of the judge to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (l988)), aff'd in part and modified in part, 179 N.J. 264 (2004). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
When the trial court's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks omitted).
Applying this standard, we discern sufficient evidence in the record to support the judge's conclusions that Ivan's best interests required termination of defendants' parental rights.
To meet the first prong of the termination statute, the Division must show there is a harm that threatened the child's health and that such harm will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 352. Even though "a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id. at 348.
Prongs one and two are related, as the second prong considers the parent's failure to provide even minimal parenting to his or her child. D.M.H., supra, 161 N.J. at 379. The second prong of the statute 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," or alternatively, "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. This prong "may be met by indications of parental dereliction and irresponsibility, such as . . . the parent's continued or recurrent drug abuse, [and] the inability to provide a stable and protective home[.]" Id. at 353.
A.
The trial judge found the first two prongs of the best interests test were met by clear and convincing evidence. As to S.J., the judge found that the first prong was met when Ivan was born prematurely and declared medically fragile due to his intrauterine exposure to methadone. This finding of harm did not rest entirely on S.J.'s substance abuse prior to Ivan's birth. See N.J. Dep't of Children & Families v. A.L., 213 N.J. 1 (2013) (holding that drug use during pregnancy, without more, does not establish abuse or neglect as defined in Title Nine). Rather, at the time she gave birth to Ivan, S.J. was still enrolled in the Straight and Narrow Program. She was clearly unable to provide Ivan with the safe and secure home, along with the specialized attention, that Ivan required upon his release from the hospital. On appeal, S.J. does not challenge the court's finding that she caused harm to Ivan.
I.G. argues that Dr. Winston examined both parents and determined that while S.J. presented a risk of harm and physical abuse to the children, I.G. presented only a very low risk of physical harm. However, "[t]he absence of physical abuse or neglect is not conclusive on the issue of custody. The trial court must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R. 155 N.J. Super. 186, 194 (App. Div. 1977).
Here, the evidence indisputably demonstrates that, by the time of Ivan's birth in March 2010, I.G. tested positive for opiates and admitted to using heroin. When Ivan was born, I.G. was enrolled in the residential treatment program at Turning Point. Thereafter, I.G. was apparently travelling back and forth between New Jersey and New York. In April, I.G. was admitted into the five-day per week intensive outpatient program at Options, from which he was discharged in July. We find ample support in the record for the trial court's conclusion that "neither [of] the defendants was available and capable of providing a safe and secure home to . . . prevent [Ivan's] placement[,] and accordingly that is another harm that occurred which satisfies the elements of the first prong."
Importantly, Dr. Winston's more favorable report was prepared in December 2009, prior to Ivan's birth.
B.
The trial judge made the following well-supported findings as to prong two:
[E]ach of the defendants has entered four or five substance abuse programs without achieving any degree of sobriety that would enable either to safely parent [Ivan], nor did either of the defendants achieve any degree of stability or capability that would enable either to provide a safe and secure housing and ability to provide for [Ivan].
. . . .
At the beginning of the trial the defendants, in an acknowledgement of their respective . . . incapacities to safely parent the children, effectuated the identified surrender to [E.N.], and placed themselves into the [treatment] programs . . . so that even on the date of trial the . . . defendants were not available to take custody of [Ivan] and were not available or capable of providing him with appropriate parenting in terms of safely providing for [Ivan].
So that the harm that occurred upon birth and satisfied the elements of the first prong continued right through to the first day of trial, namely the defendants having placed themselves in these programs.
With respect to S.J., the judge noted that she began using drugs at a very young age. She was using heroin by eighteen, and, according to Dr. Kanen's expert opinion, her prognosis for ever achieving sobriety was poor based upon her drug history, placement of her other four children, and her string of failures regarding the services made available to her by the Division.
The judge further noted Dr. Kanen's findings that S.J. has "severe parenting deficits," is mentally ill with bipolar disorder and severe depression, has longstanding personality problems, and cognitive limitations. Additionally, the judge noted that S.J. shows:
[M]ajor impairment in several areas of functioning, including parenting, difficulty maintaining stable housing, inability to work, inability to honor her family obligations . . . [she has] an estimated full-scale IQ of 71 . . . .
She shows severe deficits in thinking, reasoning, judgment, and memory. She is not capable of providing for her children with a permanent, safe, and secure home now or in the foreseeable future.
The judge stated that "the expert's finding satisfies the requirement of the second prong as well as the fourth prong . . . because [S.J.] does not have the capacity to safely parent her children as testified to by the expert."
The trial judge's findings that the Division also satisfied the second prong as to I.G. are equally supported by the record. The judge accepted Dr. Kanen's unrebutted expert testimony that I.G.'s future prognosis was poor, and that I.G. lacks the capacity to safely parent Ivan because he failed to cooperate with the Division, complete the programs to which he was assigned, or maintain sobriety. I.G. never demonstrated established or appropriate housing, or a willingness or ability to properly attend to Ivan's substantial medical and developmental needs.
C.
The third prong of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. The judge noted that the services offered to defendants by the Division included: "drug assessments, drug treatment programs, psychological evaluations, placement programs of [Alyssa] with [S.J.], bus passes, transportation, parenting classes, anger management, medical and occupation services together with early intervention services."
We agree that the proofs were clear and convincing that the defendants' persistent problems were a result of their resistance to the Division's recommendations, rather than a failure by the Division to provide them with appropriate services and opportunities. "[The Division's] efforts to provide services is not measured by their success." N.J. Div. of Youth & Fam. Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (internal quotation marks and citation omitted).
The third prong also requires that the court consider "alternatives to the termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Here, the court found that:
[O]ne person was referenced by the parties as a resource relative, and that is [E.N.]. . . . [T]he testimony at the trial from [ ] Winnik indicates she spoke to [E.N.], the paternal grandfather, and the paternal aunt when they were redoing an interview for the . . . defendants and there's no indication that [E.N.] ever said that she wanted to do the full-time care for [Ivan].
. . . .
When [Ivan] was born he had to be placed and he had special needs, and those types of special needs required a lot of care and attention, thereby creating a set of circumstances where at least anecdotally this [c]ourt could . . . make the observation that attachment would certainly begin very soon and it would become a deep attachment because of [Ivan's] needs to be nurtured, administered to, not only on a daily basis but virtually on an hourly basis.
It was up to [E.N.] to come forward at that time . . . to become involved with [Ivan], to visit regularly, but more importantly to take custody and placement of [Ivan].
To wait [twenty-one] months after Ivan had bonded so significantly [with the foster parents] amounts almost to an abandonment of [Ivan]. It was . . . a delay that was based not on the needs of [Ivan] but was a delay based on the needs of [E.N.]. She was the one that had the issue. She didn't want to stay at home.
. . . [E.N.] has the greatest of intentions but she was not able to do it because of her . . . personal circumstances.
We do not share the trial court's characterization of E.N.'s circumstances as tantamount to an abandonment of Ivan. To the contrary, E.N. appears to have exhibited a genuine desire to keep the three children together, as evidenced by the visits between Ivan, Alyssa, and Amy, which E.N. coordinated with Ivan's foster family.
However, we do find ample support in the record to conclude that E.N., while certainly well-intentioned, until the time of trial never committed to assuming Ivan's care. Winnik testified that when this case was transferred to her in November 2010, she discussed Ivan's possible placement with E.N. E.N. indicated that she felt she was unable to meet Ivan's needs at that time. Winnik then paid monthly visits to E.N. in connection with E.N.'s custody of Alyssa and Amy. During these visits, Winnik continued to discuss Ivan's care with E.N. While E.N. indicated that she would love to care for Ivan, E.N. told Winnik "on several occasions that she was not able to care for [Ivan] because she worked full[-]time and needed to continue working full[-]time."
E.N. similarly testified at trial that if Ivan's fragile medical state prevented him from attending daycare, she would be unable to care for Ivan because she was working, and not due to any lack of care or concern. E.N. further testified:
Q. When did you indicate to the Division that if [Ivan] could not go to daycare you couldn't care for him?
A. From day one.
Q. Is that still your position?
A. Yes it is.
It was further undisputed that it was only on the eve of trial that E.N. told Winnik that "she was now prepared to fight for [Ivan]," and that her adult daughter, D.G., would stay home and care for him. By that time, Ivan had bonded with his foster family. According to Dr. Kanen's unrefuted expert testimony, Ivan's removal from his foster family would then be devastating to him. This harm would not be ameliorated even if Ivan was removed and placed with "someone that was as committed as the foster parents."
The Division has a statutory obligation to contact relatives of a child in its custody. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 577 (App. Div. 2011). N.J.S.A. 30:4C-12.1 provides:
a. In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.
b. If the department determines that the relative is unwilling or unable to assume the care of the child, the department shall not be required to re-evaluate the relative. The department shall inform the relative in writing of:
(1) the reasons for the department's determination;
(2) the responsibility of the relative to inform the department if there is a change in the circumstances upon which the determination was made;
(3) the possibility that termination of parental rights may occur if the child
remains in resource family care for more than six months; and
(4) the right to seek review by the department of such determination.
c. The department may decide to pursue the termination of parental rights if the department determines that termination of parental rights is in the child's best interests.
[(Emphasis added).]
In K.L.W., supra, 419 N.J. Super. at 577-81, we found that the Division failed to meet its statutory obligation to identify and assess capable relatives. Accordingly, we remanded the case to the trial court to reconsider placement with the child's maternal grandparents, in lieu of termination. Id. at 583. Defendants urge us to reach that same result here. We decline to do so, however, as we conclude that, when contacted, E.N. advised the Division, both initially and thereafter, that she was unable to assume Ivan's care. Accordingly, the Division was not required to further re-evaluate E.N. N.J.S.A. 30:4C-12.1(b).
The Division did not inform E.N. in writing of its determination. The Division's counsel concedes that it should have done so. Nonetheless, even if the Division's failure to provide E.N. with such written notice violated N.J.S.A. 30:4C-12.1(b), "delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." K.L.W., supra, 419 N.J. Super. at 581.
D.
Pursuant to the fourth prong, the Division must show that the "termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). The Supreme Court has stated that "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." E.P., supra, 196 N.J. at 108.
Dr. Kanen's undisputed expert testimony was that no bond existed between Ivan and S.J. or I.G. Ivan "has been out of their care since birth. The child . . . does not see them as parental figures in any way. They're pretty much strangers to him."
With respect to the bond which existed between Ivan and his foster parents, Dr. Kanen testified:
Q. And after your evaluation of them together, what was your opinion as to whether a bond exists between [Ivan] and his foster parents?
A. My opinion was that he's attached and bonded to them. They've cared for [Ivan] since he was released from the hospital, so it was from the time he was approximately six weeks old. He perceives them as his parents. He perceives them as the people who meet his needs and care for him every day of the week. And they're very committed to him and very knowledgeable and very capable of providing him with a permanent, safe, and secure home.
Q. And what effect, if any, do you think there would be on [Ivan] if he were to be removed from their care?
A. Well, you would be removing a child from the only parents he's known, so it . . . would be devastating to him. You would probably see regressions in the gains that he had made. It's likely to be very difficult [] to find somebody who is that committed in terms of multiple therapies and following through on those therapies at the home, which is what the foster mother does. So my view is he would suffer serious harm if removed from them.
Q. And given that he's, you know, approximately 18 months old, what, if any, effect does his age play on the effect that the . . . that removal would have on him?
A. Well, he's old enough to definitely know that they are the primary caretakers, so it would be . . . he already has, you know, developmental delays suggesting, you know, nervous system based delays. He's . . . this would be a shock to him.
Q. By contrast, what . . . what effect, if any, do you think it would have on [Ivan] if his . . . if he was not to have contact with his biological parents anymore?
A. I don't think it would have any effect on him.
Q. Dr. Kanen, in your expert opinion what is in the best interest of [Ivan] going forward?
A. To stay with the foster parents.
We acknowledge E.N.'s continued wish to keep Ivan, Alyssa, and Amy intact, and the last-minute expression of her willingness and recently-gained alleged capacity to assume Ivan's care. We are further mindful that the Supreme Court has observed that the "we cannot underestimate the value of nurturing and sustaining sibling relationships." N.J. Div. of Youth and Family Servs. v. S.S., 187 N.J. 556, 561 (2006) (also discussing the Division's policy and statutes recognizing sibling relationships). However, even if E.N. is as committed to Ivan's care as are Ivan's foster parents, the unrefuted evidence is that Ivan's best interests are served by remaining with his foster parents, under whose substantial and continuous care he has undeniably prospered, and that Ivan would be harmed should he be removed from their care.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION