Opinion
DOCKET NO. A-1714-11T4
03-22-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. S.S.Y., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.M.Y., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Edward F. McGinty, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.M.Y. (Caitlin McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-179-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Edward F. McGinty, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.M.Y. (Caitlin McLaughlin, Designated Counsel, on the brief). PER CURIAM
We review challenges to an October 28, 2011 Family Part judgment, which terminated the parental rights of defendant S.S.Y., and granted guardianship of S.M.Y. to the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division), for the purpose of securing the child's adoption. On appeal, defendant argues the trial court erred in finding the Division presented clear and convincing evidence to satisfy each prong of the best interests test set forth in N.J.S.A. 30:4C-15.1a. Defendant further maintains trial counsel was ineffective. We are not persuaded by these arguments and affirm.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes 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 (amending N.J.S.A. 9:3A-10b).
Defendant gave birth to S.M.Y. on April 4, 2004. The Division became involved two years later, after receiving a referral from an anonymous witness, who claimed defendant was physically abusing her two-year-old. That referral was deemed unfounded.
The parental rights of S.M.Y.'s biological father were also terminated by the same judgment. He has not appealed from that decision. We omit discussion of facts surrounding his interaction with the Division or his child.
The referrant stated defendant punched the child in the head, yanked her to the ground three times, and tossed her approximately eight feet in front of her onto the sidewalk.
On May 5, 2009, the Division received a second referral when S.M.Y.'s teacher noticed a round bruise slightly larger than a quarter on the child's left cheek. S.M.Y., who had been absent the two prior days, told her teacher her mother disciplined her with a belt and hit her face. When defendant was questioned by the school earlier that morning, she stated the bruise occurred while the child played at her father's house over the weekend.
After receiving the school's report, a Division worker went to defendant's home on two consecutive days, but no one answered the door. On the second day, as the worker was about to leave, she noticed movement inside the home and summoned the police for assistance. Defendant opened the door and appeared angry and disinterested as the worker explained the purpose of her visit. The Division worker interviewed S.M.Y., who said she stayed home from school because of her face. The worker asked how she got the bruise on her left cheek, and the child became very quiet and stated she was hit in the face with something, but could not remember what. When asked who hit her, she first stated her mother, then, after several seconds of silence, stated it was her father. When asked how often she was hit, S.M.Y. stated her father hits her in the face "a lot," and her mother "always hits her" with a belt on her hands and legs.
The worker next interviewed defendant, who vocalized her resentment of the Division's involvement and interference in her "business." She refused to sit down and could not speak calmly with the worker, instead remaining agitated. With respect to how S.M.Y. was injured, defendant stated the injury occurred while the father was visiting, adding that his "very aggressive" four-year-old son always "plays rough" and "this [wa]s not the first time [S.M.Y.] ha[d] returned from a visit at her dad's house with an injury." She explained she kept S.M.Y. out of school to avoid inquiry about the bruise.
As the interview continued, defendant became more defensive, rejecting the implementation of a safety plan and the Division's request to allow a doctor to examine S.M.Y. Defendant believed the Division "just came to her house to take her daughter[,]" and blurted out, "just take her because [S.M.Y.] doesn't want to be he[re] anyway. . . . I really don't care, because this is 'F' crazy." As the Division executed an emergency removal of S.M.Y., her mother yelled to her: "[Y]ou know they are never going to allow you to see me ever again." S.M.Y. was placed in a resource home and the Division substantiated that defendant had physically abused the child.
A physical abuse evaluation by Marita Lind, M.D., of the Child Abuse Resource Education & Service Institute reported S.M.Y.'s statement that her bruise was the result of her mother "whopp[ing]" her with the front of a black belt when she woke her up. S.M.Y. stated her father does not hit her with the belt, her grandmother does hit her with the belt, and her uncle yells at her. A physical examination of the child revealed a "hyperpigmented loop shaped area with some underlying ecchymosis on the left cheek[,]" with the loop measuring four centimeters in diameter. Dr. Lind concluded the results of the physical examination were consistent with physical abuse, and also noted the failure of the mother, father, and grandmother, to seek medical care for the child's injury.
The Division filed a complaint on May 8, 2009, alleging S.M.Y. was an abused and neglected child. S.M.Y. was placed in the care of her maternal great-aunt, A.Y.
It became clear that defendant's inability to control her anger and frustration created interpersonal conflict and precluded development of lasting familial, romantic, and employment relationships. Her psychological evaluation by Meryl E. Udell, Psy.D., found defendant had a "sound" personal philosophy of how she would like to live her life, but appeared to have trouble "making the changes she needs to make to improve her functioning in the world." A secondary issue was discovered when S.S.Y tested positive for marijuana and it was learned she had a cannabis dependence.
In an effort to enable defendant to safely and appropriately parent and care for her child, the Division provided: substance abuse evaluations and treatment; psychological evaluations and counseling; anger management therapy and parent education; and visitation services. The Division also provided play therapy for S.M.Y.
S.M.Y. was returned to defendant's care on October 22, 2009, subject to defendant's continuation of intensive outpatient substance abuse treatment and any other services arranged by the Division. Further, defendant was ordered to assure S.M.Y.'s participation in play therapy.
Rachel Margolin, LCSW, conducted play therapy sessions with S.M.Y. Her reports noted:
The only topic . . . that was off limits was her mother, [defendant]. . . . [T]he [t]herapist brought her mother up three times in the context of the already established dialogue. They were — "what is your favorite food that your mom cooks"; "does your mom read to you too"; and "do you need help from your mom with your homework?" It quickly became apparent that [S.M.Y.] was instructed not to discuss her mother.
On December 15, 2009, defendant contacted her caseworker to advise she was away and S.M.Y. would miss her next play therapy session. She also mentioned she accidentally burned S.M.Y. with a flat iron while straightening her hair, causing burn marks on the child's forehead, ear, and scalp. Division workers were dispatched to investigate. The individual interviews of defendant and S.M.Y. yielded identical accounts of the accident, resulting in any allegation of abuse being deemed unfounded.
On December 18, 2009, S.M.Y.'s school contacted the Division because the child told her teacher her mother had hit her with a belt for "not knowing her [school] words," and the child's lower right arm was red and swollen. The Division dispatched a caseworker to the home. When defendant was told S.M.Y. needed to be interviewed first, she became very hostile and defensive. Although disclaiming knowledge of S.M.Y.'s arm injury, she hypothesized that a closet pole fell on S.M.Y. while playing. When the worker asked defendant to leave the room while she talked with S.M.Y., she went to an adjacent room, leaving both doors open, apparently to listen. In response to the worker's initial questions, S.M.Y. stared at the worker in silence. When asked if anyone hits her at home, she said no. Then the worker asked S.M.Y. about her burns. The child's eyes began to tear and she stated she did not want to talk about it. The same response was given when questioned about her arm and she added she "did not want to be taken away from her mom again." Defendant entered the room and instructed S.M.Y. to "tell the truth" about her bruise, to which the child responded: "I got hit for not knowing my words." Defendant became irate and yelled: "Girl, I did not hit you. Tell her how you were playing in the closet and got hurt." Defendant accused the worker of manipulating children into saying anything. The worker viewed S.M.Y.'s fear of her mother, contacted her supervisor, and executed an emergency removal. Defendant berated S.M.Y., accusing: "All of this is your fault. See what you did. This is all your fault. Now you have to go with them. I hope you are happy about what you did." Although it was only thirty-two degrees outside, defendant refused to surrender S.M.Y.'s shoes, coat, or any clothing but the pajamas she was wearing. For a second time, the allegations of child abuse were substantiated. S.M.Y. returned to A.Y.'s home.
Services were reinstated for defendant, including intensive outpatient substance abuse treatment, individual counseling for anger management and parenting skills, and weekly supervised visitation. Also, play therapy for S.M.Y. continued.
Defendant successfully completed substance abuse treatment, obtained employment, learned "effective distress tolerance and anger management skills[,]" and widened her support network. By late 2010, however, defendant relapsed, renewing her frequent marijuana use. Intensive outpatient substance abuse treatment was ordered. Defendant moved in and out of treatment thereafter, with no significant periods of abstinence.
As to counseling services, individual counseling again directed toward defendant's process of her childhood traumas. However, she remained unwilling to examine these lingering issues or her lack of a meaningful social support system, and demonstrating general lack of trust. Defendant completed anger management, but her counselors identified her need for additional services.
Finally, defendant failed to attend visitation on a consistent basis. Despite the provision of bus passes, she either canceled an hour or two prior to the scheduled visit, arrived late, or simply did not show at all. She also verbally assaulted the supervisors who insisted defendant arrive on time, in the presence of the child.
When defendant attended visits, often times her behavior toward the child was inappropriate. She continued to lose her temper, use profanities, demonstrate anger, and direct her rage toward S.M.Y., indifferent that her comments reduced the child to tears. On one occasion, she scolded the child for no apparent reason, abruptly ended the visit early, and stormed out; on another, she told S.M.Y. it was her fault she was in placement, because she "wanted to talk about her mother." During other visits, defendant was often apathetic, talked on her cell phone, and failed to interact with the child. Margolin, S.M.Y.'s play therapist, recommended the suspension of visitation until defendant learned to regulate her emotions and resist subjecting her daughter to verbal and emotional abuse. Margolin related she had:
commented that she heard [defendant] had moved. [S.M.Y.] appeared scared. She got quiet. The [t]herapist responded in a jovial fashion. [S.M.Y.] verbalized that she was scared. She asked to check "in the hall[,]" implying that she was concerned someone was listening to her dialogue. The [t]herapist then took [S.M.Y.] out into the hall so that she could make sure that no one was listening to her conversation. She then told the [t]herapist that her mom hit her with a belt "because I didn't know my words for school." The [t]herapist assured her that was wrong of her mom to do. [S.M.Y.] said she was scared of her mom. . . . Later in the session, [S.M.Y.] spontaneously stated that her mom burned her face on purpose (from the last session) because she kept moving her head. It was clear [S.M.Y.] felt a little better after she said these things[;] although she was cautious and brief with her statements, she did seem empowered. "My mom does a lot of hitting."
Margolin reported S.M.Y. looked forward to visitation with her mother, and understood her mother loved her, yet S.M.Y.'s feelings were conflicting, and Margolin believed S.M.Y.'s experiences of abuse had a negative effect on her. The child was in the midst of processing her damaging childhood experiences and "[i]t is only natural that she would strive for positive feelings around her visits" to maintain her self- esteem. S.M.Y. exhibited anger and Margolin noted she was struck by the intensity of the child's feelings. During role playing games, S.M.Y. played a teacher who was impatient, punitive, and threatening towards her imaginary students, strongly resembling S.M.Y.'s description of her mother's treatment of her. S.M.Y. regularly discussed the physical abuse by her mother and how afraid she was. Included in Margolin's July 2010 report was S.M.Y.'s statement that defendant asked her what she talked about during play therapy. S.M.Y. explained she replied "stupidness," because her mother would be angry were she truthful. Margolin reiterated her concerns defendant could sabotage everything S.M.Y. had achieved in play therapy.
The Division continued efforts directed toward reunification. Margolin had misgivings because she opined S.M.Y. remained vulnerable and very conflicted about her mother, feeling both love and fear. The child was excited when defendant suggested S.M.Y. would be moving to Philadelphia to live with her mother and father. Addressing her opinion regarding S.M.Y.'s permanency, Margolin strongly asserted S.M.Y. should not be placed with her mother, suggesting S.M.Y. was an entirely different child when around her mother and her "look of fear c[ould] not be emphasized enough." Reports regarding Margolin's play therapy ended in April 2011.
Although previously court-ordered, the Division did not offer family therapy, based on Dr. Udell and Margolin's January 2011 recommendation that family therapy "would definitely not be in [S.M.Y.]'s best interest and would in fact be detrimental to [her] emotional health." They elaborated:
We say this because [S.M.Y.] is still terrified of her mother and is healing from the emotional scars of years of physical abuse from her mother. This abuse has resulted in the stunting of her emotional growth and she presents as emotionally much younger than her chronological age. She presents with the ego-strength of a child about the age of two or three years old, rather than the six year old that she is. It must be remembered that she has been returned to her mother two times and each time was abused by her. In addition, her mother moved out of the state without notice to anyone[,] which also indicates a lack of caring or concern for her daughter. [Defendant] also has a history of standing outside of the therapy room door while [S.M.Y.] is in session in order to hear what her daughter was saying and this caused [S.M.Y.] tremendous anxiety about the safety of the therapeutic session and limited her ability for quite a while to feel safe enough to use therapy to its fullest benefit. It was necessary to speak with the caseworker and to instruct [the] mother that she was not permitted to interfere with her daughter's therapy. The times when I did observe [S.M.Y.] with her mother[,] it was very clear that [S.M.Y.] was very intimidated by her mother and would not utter a word without first looking at her for an indication that it was okay to speak. In short, [S.M.Y.] remains frightened of her mother, has been repeatedly abused by her and still struggles with the emotionalOn the other hand, defendant's individual counselors maintained family therapy was imperative. Faced with these competing recommendations, the trial judge ordered the Division to refer defendant to Janet Cahill, Ph.D., for a parenting capacity evaluation to determine whether family therapy should be utilized. In light of a lengthy delay because of Dr. Cahill's schedule, the Division eventually made arrangements to begin family therapy.
consequences of her mother's actions. For these reasons it is recommended that there not be any therapy sessions of any sort between [S.M.Y.] and her mother.
Notwithstanding these efforts geared toward achieving reunification, the Division revised its permanency goal for S.M.Y., to seek termination of parental rights followed by adoption by A.Y. The guardianship complaint was filed on April 13, 2011.
Four family therapy sessions were conducted by Sharon D. Thomas, M.S., L.P.C., beginning in July 2011. Thomas observed mother and daughter were very playful, interactive, and at ease. Defendant emphasized her love for S.M.Y. and her desire to achieve reunification. Thomas noted S.M.Y. never seemed fearful of her mother, and expressed a desire to return to her home. Thomas also recommended individual therapy for defendant, stating "there were definitely needs that [defendant] had that . . . need[ed] to be addressed, but outside of a family setting."
Dr. Cahill completed her evaluation on September 6, 2011, following a two-and-a-half hour clinical interview with defendant, an observation of S.M.Y. with defendant, psychological testing, and review of all records received from the Division. The observation period included four sections, each of which was designed to gauge different aspects of the parental relationship: (1) unstructured task; (2) structured task; (3) distracted task; and (4) clean-up task. The protocol is designed to identify the presence or absence of empirically-based parenting risk factors, which in turn evidence the likelihood of current or imminent risk of harm to the child.
Defendant appeared cooperative, but displayed a pattern of externalizing blame. Although her mood was generally neutral, there were noticeable periods of depression and irritability. Her insight about her own behavior was poor, and she was a "marginal historian." She downplayed her prior depiction of the abuse experienced as a child, and denied physically striking or hurting S.M.Y. She admitted smoking marijuana, suggesting it was to help her relax, and candidly recognized having a problem with authority.
During the four-part interactive session between defendant and S.M.Y., Dr. Cahill noted moments where both appeared to enthusiastically enjoy themselves, but others where S.M.Y. appeared uncomfortable in defendant's presence. Dr. Cahill described the mother-daughter level of attachment as "moderate" and "not particularly strong." In the structured task, Dr. Cahill observed defendant's poor parental boundaries. Dr. Cahill observed S.M.Y. was often in charge and provided support for her mother, rather than vice versa.
When asked by Dr. Cahill where she wanted to live, S.M.Y. said she was "OK" living with A.Y. but wanted to return to her mother. She reported feeling "sad and happy" around her mother, and told Dr. Cahill her mother yells at her, but she did not report being afraid.
The psychological testing conducted by Dr. Cahill showed defendant presented with significant depressive symptoms, schizoid traits characterized by a lack of interest in social relationships, lack of social skills, and alienating everyone around her, a tendency towards a solitary lifestyle and extreme social isolation, secretiveness, emotional coldness, high levels of irritability, and chronic, heavy use of marijuana. Dr. Cahill also noted defendant lacked stable housing and employment. Dr. Cahill was particularly troubled by what she labeled the "chronicity of this case[,]" stating:
[Defendant] behaves in the same manner she did two years ago. There has been no change. The original risk factors that caused the removal have not decreased. She has been exposed to appropriate services, but has not taken advantage of them. [Her] renewed activity is common among parents who realize adoption is going forward. She has exhibited increased compliance in terms of attendance; however, there is no evidence of change in the key risk factors discussed above.
Dr. Cahill recommended against family therapy because of defendant's significant psychopathology, which would interfere with safe and effective parenting. Dr. Cahill stated she would have to see significant change in defendant's psychological functioning and ability to cope before she would expose S.M.Y. to family therapy, as the therapy could easily confuse the child and interfere with the permanency plan of adoption, making it more difficult for S.M.Y. to transition to permanently living with A.Y.
Evaluations by Frank J. Schwoeri, Ph.D., assessed the quality of the bonding and attachment relationships between S.M.Y. and defendant, and S.M.Y. and A.Y. Dr. Schwoeri also conducted a current psychological evaluation to assess whether defendant could provide safe and effective parenting. Dr. Schwoeri described defendant as "reasonably cooperative and compliant, although at times . . . significantly defensive, evasive and vague." Her affect was sullen, her mood subdued and depressed. She became irritated and angry quite easily. For example, when asked objective questions about her employment history, she became very defensive, believing Dr. Schwoeri was being critical. Generally, throughout the evaluation, she repeatedly proclaimed herself a victim. Defendant did not admit her conduct harmed S.M.Y.; rather, she explained her attitude and manner of dealing with the Division resulted in S.M.Y.'s removal from her care. Defendant also modified her personal history from the account provided during earlier evaluations, denying ever being physically or emotionally abused as a child, or subject to domestic violence at any time in her life. She expressed a loving relationship with her mother and stepfather, to whom she could turn if she ever needed anything. She declined to discuss the psycho-therapeutical services provided by the Division, and when asked if they were helpful, stated they would have been more helpful if she had been "susceptible to it" and "thinking with a clear head at that point." Finally, she admitted she recently smoked marijuana, which she used to cope.
The administered psychological tests showed defendant "exhibit[s] a self-centered contempt for social conventions and edgy irritability and resentment over having been cheated and victimized . . . [,] certainly consistent with the impression that she created on interview." Dr. Schwoeri explained persons with this profile tend to be "provoked into sudden and unpredictable reactions. Their likely pattern of negativism, sullen pouting, fault-finding, and stubbornness may be punctuated periodically by vulgar and derisive outbursts[,]" which was "quite consistent with other documented descriptions of her behavior from therapists['] reports and supervised visitation reports."
Although defendant scored favorably on certain parenting tests, Dr. Schwoeri declined to place much weight on the results because defendant's history reflected "a contrast between her consciously endorsed values and attitudes when in a calm situation, versus her actual behavior when she is angry, frustrated or upset as noted in multiple reports of angry and inappropriate behavior in front of her daughter and with her daughter."
During the bonding evaluation, Dr. Schwoeri observed S.M.Y. maintained some degree of distance from defendant, "suggesting some discomfort with physical proximity with her mother, although she did not appear overtly fearful or anxious." Overall, Dr. Schwoeri found the atmosphere to be warm, relaxed, and comfortable, with no evidence of anxiety, aversion, or fear. However, in light of the materials he reviewed, he concluded S.M.Y.'s behavior "was largely compliance behavior, motivated by her wish to be with her mother despite her mother's abuse of her, as well as possibly some fear of acting in any other way." He opined the affection demonstrated by S.M.Y. was entirely consistent with trauma bonding, a clinical phenomenon in which children cling to their abusive parents equally if not more so than do children who have not been abused.
Dr. Schwoeri also performed a bonding evaluation between S.M.Y. and A.Y. Although A.Y. was not very playful because of physical limitations, S.M.Y. seemed content to simply sit next to her and lean on her shoulder. Both were very comfortable and at ease with one another. A.Y. expressed interest in S.M.Y.'s school performance, was receptive of the child's positive and negative feelings, and appeared to use disciplinary measures appropriate for the child's age. A.Y. stated she desired to adopt S.M.Y., not out of obligation but because she loved the child. Dr. Schwoeri found A.Y. was "providing the stability, protection, nurturance[,] and guidance which [S.M.Y.] needs and that the vast improvement in [her] behavior is indicative of the quality of [A.Y.]'s care for her." Dr. Schwoeri concluded "it is clearly in [S.M.Y.]'s best interest to remain in the care of [A.Y.]"
In the three-day guardianship trial, the Division presented testimony from its case workers, defendant, and Laura Bradley, a Division employee who overheard defendant telling S.M.Y. this whole situation was her fault during a June 21, 2011 visitation. The Division also presented the expert testimony of Dr. Schwoeri and moved numerous exhibits from its case file into evidence, without objection. The defense called Thomas, the family therapist, and Dr. Cahill.
The witnesses' testimony reflected the factual recitals we have recounted. Significantly, defendant denied she ever harmed her daughter, denied she was using marijuana, and asserted she was living in a two-bedroom townhouse and had obtained employment driving a school bus the previous month. She expressed a willingness to comply with any services and resume family therapy.
The trial judge rendered an oral opinion stating his factual findings and concluding that the Division had satisfied each of the four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. He granted the Division's request to terminate defendant's parental rights and enter judgment granting guardianship to effectuate S.M.Y.'s adoption by A.Y. Defendant appealed.
As a threshold matter, the scope of appellate review of an award of guardianship and termination of parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). Such a feel of the case "can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M. , 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted). In those circumstances, we "accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
In our review of a Family Part order terminating parental rights, we must consider the following legal principles. Our Supreme Court has "repeatedly affirmed that parental rights are fundamental and constitutionally protected." N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 285-86 (2004) (citation omitted). Consequently, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures[,]" Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982), the "basic indicia" of which are "adequate notice and a meaningful opportunity to be heard," A.R.G., supra, 179 N.J. at 286 (citation omitted). While the constitutional protections surrounding family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children[,]" the State must nevertheless exercise its powers over parental rights with "scrupulous adherence to procedural safeguards." Ibid. (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002)). See also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). "A parent's right to enjoy a relationship with his or her child is constitutionally protected[,]" K.H.O., supra, 161 N.J. at 346 (citation omitted), but this right is not absolute, J.N.H., supra, 172 N.J. at 471 (citation omitted). The State has the responsibility to protect minor children from serious physical or emotional harm, which may require severing the parent-child relationship. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599-600 (1986).
"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). Nevertheless, some parents "may at times be acting against the interests of their children[.]" Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (internal quotation marks and citations omitted). When "experience and reality . . . rebut what the law accepts as a starting point," the State's parens patriae obligations are triggered. Ibid. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, a child's need for permanency and stability is a critical factor in guardianship cases.
When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. (citation omitted). "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and "[t]he 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." Ibid. (citing Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17).
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). This responsibility, in some cases, requires the parent-child relationship be severed. A.W., supra, 103 N.J. at 599 (citation omitted).
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 602-11, was codified at N.J.S.A. 30:4C-15.1a, and requires the State to establish each of the following prongs by clear and convincing evidence before parental rights may be severed:
(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.
In their application, the four prongs "'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.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting P.P., supra, 180 N.J. at 506). The considerations involved are "'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of each case." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (quoting K.H.O., supra, 161 N.J. at 348).
In this matter, defendant challenges the sufficiency of the State's evidence found by the trial judge to satisfy the four-pronged best interests test. Further, she maintains reversal is warranted because trial counsel was ineffective.
As to the first prong, defendant argues the trial judge's finding she struck S.M.Y. is unsupported by credible evidence. She asserts the child's inconsistent statements preclude this finding. Also, she suggests "the trial court's finding that continuation of the parental relationship presents a 'great risk' that this will happen again is without merit."
To satisfy the first prong of N.J.S.A. 30:4-15.1a, the Division must show a harm that "involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "Although 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." Ibid.
The absence of physical abuse or neglect is not conclusive; the court must consider the potential for serious and lasting emotional or psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R. , 155 N.J. Super. 186, 194 (App. Div. 1977). The Division "does not have to wait until a child is actually irreparably impaired." F.M., supra, 211 N.J. at 449 (internal quotation marks and citations omitted). Moreover, a parent's erratic behavior may harm the child and the parent-child relationship "by preventing it from progressing further." In re Guardianship of A.A.M. , 268 N.J. Super. 533, 547 (App. Div. 1993).
The Division substantiated physical abuse by defendant who injured S.M.Y. twice, bruising her left cheek and injuring her right arm. The record is replete with evidence, other than the child's words, that defendant's conduct caused the injuries.
School personnel, therapists, and Division workers observed the injuries and specifically described them. The explanations offered by defendant for those injuries were inconsistent with each other and with other facts. Defendant failed to seek medical assistance when the child's face was injured, and also kept her from school to avoid questions or referral to the Division. Dr. Lind's finding that the cheek bruise was consistent with child abuse supports the Title Nine order, which concluded S.M.Y. was an abused child. Defendant completely denied knowledge of the arm injury, yet the child's right arm needed treatment by the school nurse as it was red, swollen, and sore. Corroborating evidence is also found in defendant's admission she engaged in corporal punishment. Also, defendant interfered with third-party attempts to interview the child, glared at her daughter or verbally issued warnings prior to the child's responses, and continued to blame S.M.Y. for the Division's intervention. Observations of S.M.Y. captured her fear, tears, and compliant, withdrawn behavior to avoid provoking defendant. Finally, defendant displayed her explosive behavior to Division personnel on several occasions.
Dr. Schwoeri's unrefuted, "highly credible" expert testimony added a psychological opinion supporting the trial judge's finding. The trial judge found Dr. Schwoeri clearly and convincingly explained the relationship between defendant's youthful trauma experiences and the results of her current psychological testing and demonstrated personality deficits, which included reduced emotional control, poor anger management, along with self-centered, defensive, and easily provoked responses. All psychological examinations of defendant consistently concluded she was unable or unwilling to talk about her childhood trauma, making her incapable of improving or addressing the long-lasting effects, and causing her to lose control and abuse S.M.Y. Absent resolution of her trauma experiences, it was highly likely defendant would continue to engage in abuse. There was "no question in [Dr. Schwoeri's] mind" the risk of future abuse remained significantly enhanced if S.M.Y. were reunified with her mother. Dr. Cahill's testimony echoed these opinions, highlighting the present parenting risk factors -- social isolation, history of abuse, clinical depression, cannabis dependence, schizoid and paranoid traits, noncompliance with services, and problems with tasks of daily living -- associated with child abuse, both physical and psychological, that could result in the child's development of significant psychological impairments if reunified with her mother.
In addition to the physical abuse, defendant was unable to provide stability, consistency, predictability, and reliability, essential for S.M.Y.'s healthy future development. Defendant's history reflected an inability to maintain employment, and her latest position was only one-month in duration at the time of trial. She also only recently secured housing, after episodes of homelessness. Although defendant claimed to have ceased illicit drug use, she proffered no proof of that claim. Even so, her assertion of abstinence must be viewed in light of repeated relapses over the two years S.M.Y. was under the Division's care and supervision.
The record includes strong evidence clearly and convincingly proving defendant abused S.M.Y. Her assertion to the contrary, suggesting the sole evidence of abuse is the uncorroborated statements of the child, is without merit. R. 2:11-3(e)(1)(E).
Despite defendant's denials, the evidence supports she harmed her child, and remains unable to mitigate the harm to S.M.Y. Years of services provided by the Division, designed to allow reunification, including one failed attempt to return custody to defendant, were unsuccessful.
Under N.J.S.A. 30:4C-15.1a(2), the Division may demonstrate parental unfitness with proof of the parent's unwillingness or inability to eliminate the harm that has endangered the child's health and development. K.H.O., supra, 161 N.J. at 352. Parental unfitness can also be demonstrated by showing the parent "has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." Ibid. (quoting N.J.S.A. 30:4C-15.1a(2)). See also I.S., supra, 202 N.J. at 175 (describing alternative showings sufficient to satisfy the second prong). Relevant considerations include, inter alia, "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse [or] the inability to provide a stable and protective home[.]" K.H.O., supra, 161 N.J. at 353.
In concluding the Division satisfied the second prong, the trial judge found: "[W]hile [defendant] may be willing, she is unable to eliminate the harm facing the child, because she is unable, and perhaps even unwilling, to engage meaningfully in the services that would be necessary to change her personality." The trial judge emphasized the unrefuted testimony of Dr. Schwoeri and Dr. Cahill opining defendant "has not taken to the lessons that were put before her. Mere attendance to the classes and sitting in the seat . . . does not mean that the service was received and used."
As Dr. Cahill explained, a truly successful engagement in therapy requires two levels of compliance: physical attendance and observable, demonstrable change in behavior reducing the risk factors, which started the case in the first place. Defendant's refusal to recognize the need to address and resolve her personal issues resulting from her past abusive life experiences caused her to repeat similar conduct upon her daughter. In denying she was abused, she in turn refused to accept that her conduct towards her daughter was abusive. More importantly, she resorted to illicit drug use in an effort to resolve her depression and mitigate her sense of isolation. Despite her attendance in programs, such as anger management and parenting skills, Dr. Schwoeri testified there was little or no change in defendant's behavioral tendencies, which put her daughter at risk of harm. Defendant told Dr. Cahill she was "too angry" to make productive use of the anger management classes, and although she attended individual mental health counseling, "she was depressed and shut down during counseling." When asked if the programs helped, she told Dr. Schwoeri something similar, stating they could have helped had she been "susceptible to it." Despite numerous opportunities to do so, defendant did not cure or overcome the harm that initially endangered S.M.Y.'s health, safety, and welfare and caused her removal, making it unsafe for the child to return to her mother's care.
Our discussion also amply reveals the extent and nature of the myriad services extended over two years, which were designed to assist defendant to correct and overcome the circumstances that necessitated S.M.Y.'s removal and to reunify the family. See K.H.O., supra, 161 N.J. at 354. We easily reject defendant's argument that the Division's efforts were not reasonable. R. 2:11-3(e)(1)(E).
Under N.J.S.A. 30:4C-15.1a(3), the Division's efforts are "'not measured by their success[,]'" but "'assessed against the standard of adequacy in light of all the circumstances of a given case. Consistent efforts to maintain and support the parent-child bond are central to the court's determination.'" N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (quoting D.M.H., supra, 161 N.J. at 393). This prong requires the Division to demonstrate it "has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[.]" N.J.S.A. 30:4C-15.1a(3). The Division's efforts may be affected by the parent's behavior, including refusal to attend therapy or participate in services, threatening service providers, caseworkers, therapists, and foster parents, and verbally abusing the child. A.W., supra, 103 N.J. at 610 (citation omitted).
As part of this third prong, the Division must also demonstrate it "has considered alternatives to termination of parental rights[.]" Ibid. Accord N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579-80 (App. Div. 2011).
Here, defendant was provided with opportunities to engage services which she inconsistently utilized. Her incessant denial of the need for services, sporadic attendance, and overall failure to commit to compliance doomed her success.
We do not agree the Division's suspension of the recently commenced family therapy, upon Dr. Cahill's recommendation, was unreasonable. As Dr. Schwoeri and Dr. Cahill testified, defendant's problems were not difficulties between parent and child. Thus, family therapy was inappropriate and should not have been used until the parent achieved a degree of resolution with her own problems, which defendant had not done. In light of these opinions, the Division's decision to refuse to continue to provide family therapy was a reasoned one.
Defendant contends the Division and the trial judge failed to adequately consider kinship legal guardianship as an alternative to termination. The claim is unfounded.
Appointment of a kinship legal guardian is only permitted "when 'adoption of the child is neither feasible nor likely.'" P.P., supra, 180 N.J. at 509 (quoting N.J.S.A. 3B:12A-6d). See also N.J.S.A. 3B:12A-1. In other words, so long as adoption is feasible, kinship legal guardianship is not available and should not be considered as an alternative to termination. Id. at 512. Because of the paramount importance of permanency, when the absolute permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights. Id. at 513. A.Y.'s desire to adopt S.M.Y. obviated consideration of kinship legal guardianship as a matter of law. See N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 135 (App. Div. 2011).
Defendant also attacks the trial judge's finding, which heavily relied on Dr. Schwoeri's bonding assessments, that severing her parental rights served S.M.Y.'s best interests and would not result in more harm than good. She argues Dr. Schwoeri "was duped" by the Division and failed to adequately analyze the child's need to preserve the bond with her mother.
The fourth prong of the statutory best interests test, N.J.S.A. 30:4C-15.1a(4), "serves as a fail-safe against termination even where the remaining standards have been met[,]" assuring the child's needs are properly met. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The 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. See also K.H.O. , supra, 161 N.J. at 355 (noting the question under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents"). Focusing on the child, the court must determine whether the child's need for a permanent, stable, safe home outweighs a parent's right to maintain a relationship with the child and the child's need to remain attached to his or her parent. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).
Unquestionably, there is a bond between defendant and S.M.Y., and the child had expressed her wish to live with her mother. However, these facts, favoring the retention of the bond, must be weighed against the evidence suggesting maintaining the status quo will be detrimental to S.M.Y.
Dr. Schwoeri provided the necessary expert testimony following his "'opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parent[] and the foster parent[].'" F.M., supra, 211 N.J. at 453 (quoting M.M. , supra, 189 N.J. at 281). He explained S.M.Y.'s relationship with defendant was fraught with the child's display of compliance behavior, which was part of a trauma bond, an unhealthy relationship for S.M.Y. The record includes numerous instances where S.M.Y.'s conduct accommodated her mother's actual or anticipated actions, thus diminishing her sense of self-worth and adversely impacting her psyche. The child's conflicting feelings toward her mother have caused psychological harm, as S.M.Y. tries to please her mother. In contrast, when with A.Y., the child genuinely expressed herself without fear of reprisal. S.M.Y. knows A.Y. is committed to her well-being and that she provides a loving, nurturing environment, with stability and predictability.
At trial, all professionals agreed, returning S.M.Y. to her mother was not an option because it exposed the child to a very high risk of re-experiencing significant harm. Dr. Schwoeri opined it was in S.M.Y.'s best interests to remain in the placement with A.Y., rather than being reunified with her mother, as S.M.Y. cannot wait for her mother to resolve her own issues, which, based on the evidence over the past two years, may never happen. Dr. Cahill agreed adoption was in S.M.Y.'s best interests because the child was in desperate need of permanency.
No evidence disputed the loss of contact with her mother would cause S.M.Y. sadness and some detriment. Nevertheless, A.Y.'s dedication to the child will mitigate that harm. Further, as Dr. Cahill opined, "returning [S.M.Y.] to her mom is a more serious trauma than losing the attachment figure."
Following our review, we conclude the trial court's findings on each prong of the statutory best interests test, N.J.S.A. 30:4C-15.1a, are fully supported by clear and convincing credible evidence found in the record. Accordingly, the judgment of guardianship will not be disturbed.
Lastly, defendant seeks a reversal of the judgment, claiming she was denied effective assistance of trial counsel. She maintains "[t]he conduct of the assistant deputy public defender assigned to represent [her] at trial fell significantly below the level of professionally acceptable behavior and prejudiced [her] defense to such an extent that a remand is necessary to ensure a fair adjudication of the matter." More specifically, defendant identifies these errors to support her claim: (1) counsel failed to object to the introduction of Margolin's play therapy progress reports and recommendation against family therapy and/or to cross-examine her; (2) counsel conceded the Division's evidence established defendant's conduct caused harm to her child; (3) counsel did not inform her of her right to file an appeal from the Title 9 proceeding; (4) counsel allowed the introduction of Dr. Lind's report into evidence without objecting on hearsay grounds, and did not subpoena the photographs of the child's bruised cheek; and (5) did not obtain and introduce defendant's negative drug screens conducted by her employer. Following our review, we reject these arguments.
Parents defending the State's action seeking guardianship have the right to effective counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007) ("[T]he right to counsel in a termination case has constitutional as well as statutory bases. Either way, the performance of that counsel must be effective."). This claim must be raised by the parent on direct appeal from a judgment of guardianship. Id. at 311.
We evaluate a claim of ineffective assistance of counsel in light of the two-pronged standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). B.R., supra, 192 N.J. at 309. Parents challenging a judgment terminating their parental rights must show counsel's performance was objectively deficient, and, but for counsel's unprofessional errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In our review, we afford "'a strong presumption'" counsel has rendered appropriate and sufficient professional assistance. State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). A claim of ineffective assistance of trial counsel must point to "specific errors," which rise above the level of general trial strategy. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Bald assertions of ineffective assistance or attacks on counsel's trial strategy are insufficient and an appellant
must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in
appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.
[B.R., supra, 192 N.J. at 311.]
Margolin's play therapy and Dr. Lind's medical examination reports, permissibly introduced as part of the Division's documentary evidence, satisfied the business records exception to the hearsay rule. It was not disputed that these documents were contemporaneously kept in the usual-course-of-business by Division staff and affiliated consultants. N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 349-50 (App. Div.) (citing In re Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969)) (noting such reports are reliable and admissible as regularly-kept business records pursuant to N.J.R.E. 803(c)(6), and specifically permitted to be submitted as prima facie evidence under Rule 5:12-4(d)), certif. denied, 192 N.J. 296 (2007).
Additionally, contrary to defendant's claims of prejudice, the reports were not a "central piece of evidence in this case" which made "the difference between salvation of [defendant]'s parental right, or its termination." Rather, the trial judge placed no reliance on Margolin's observations or opinion, and instead focused on Dr. Cahill's and Dr. Schwoeri's expert trial testimony.
Another alleged error was a perceived concession of the harm caused S.M.Y. We find this assertion meritless. Our opinion details the facts supporting the first prong. Consequently, counsel's alleged concession of existing harm had no impact. Defendant's claim she had a witness, Jennifer Brown, to support her explanation of S.M.Y.'s injury, does not demonstrate that counsel was ineffective because defendant has not supplied a certified statement of how Brown would have testified had she been called. See B.R., supra, 192 N.J. at 311.
Next, even if counsel's competency can be deemed questionable based on defendant's allegation she was not advised of her right to appeal from the Title 9 findings of abuse and neglect, the result of this matter would have been unchanged had counsel given this advice. The Division's proofs of sufficient harm upon S.M.Y. by her mother's conduct satisfy a finding S.M.Y. is an abused child. Again, defendant's claims, if true, do not show a reasonable probability the trial judge's findings would have changed or the results of the guardianship proceeding would have been different.
With respect to the last allegation of incompetence, the failure to subpoena negative drug screens conducted by her employer, defendant does not now present these employer drug tests to support her claims. Moreover, at most the employer initiated, negative drug tests would show defendant had refrained from marijuana use for one month, an achievement she had previously attained. Her past performance also includes numerous relapses after brief periods of sobriety. If defendant has finally chosen to reject illicit drug use as an escape from her deficits, we applaud her efforts. However, the claims now presented do not prove that at the time of trial she had overcome her chronic substance abuse to assure her child's safety. Evidence of the negative drug tests would not have altered the trial's outcome.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION