Opinion
DOCKET NO. A-4814-10T1 DOCKET NO. A-4861-10T1
05-16-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.D. and J.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF Q.C.D. and M.R.F.D., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant T.D. (Allison Haltmaier, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.B. (Theodore J. Baker, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan Brown-Peitz, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-90-10.
Joseph E. Krakora, Public Defender, attorney for appellant T.D. (Allison Haltmaier, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant J.B. (Theodore J. Baker, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan Brown-Peitz, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants T.D. and J.B. appeal from the April 25, 2011 judgment of guardianship of the Family Part terminating their parental rights to their then six-year-old son Q.C.D. (Quinn) and her then three-year-old son M.R.F.D. (Michael). She argues the Division of Youth and Family Services (Division) did not prove the four prongs of the termination statute by clear and convincing evidence. He argues the Division did not prove by clear and convincing evidence statutory prong three as he was not offered services and his family members were not properly considered for placement of his son. The Law Guardian supports the termination on appeal as it did before the trial court.
We use fictional names to protect the privacy of the children and for ease of reference.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
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Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of T.D.'s and J.B.'s parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm.
I.
The following facts and evidence were adduced during the eight-day trial before Judge James Mulvihill that took place on non-consecutive days from February through April 2011. The Division presented the testimony of Dr. Melissa Rivera Marano, a psychologist; caseworkers Mary Munda, Ebony Williams, Margo Meskin Epelbaum, Breanne Crawford, and Erica Wurtzel; and the foster mother. J.B. presented the testimony of Dr. Antonio W. Burr, a psychologist. T.D. testified on her own behalf, and presented the testimony of various relatives, including her mother.
T.D. is the biological mother of Quinn, born in April 2005, whose father is J.B., and Michael, born in September 2007, whose father is unknown. She also has another child, F.F. (Frank) born in March 2009, who is not subject to this action and is in her custody.
A.
The Division has been involved with T.D., who was born in l988, since her teenage years due to her history of behavioral problems. When each of T.D.'s children were born, the Division continued its involvement. In June 2008, T.D. reached out to the Division for a reference for shelter or other programs because her mother no longer wanted her in the home. A Division caseworker met with T.D. at that time and witnessed her being unresponsive to nine-month-old Michael's wails. When three-year-old Quinn struck T.D., she slapped him in the face. The caseworker attempted to intervene and T.D. responded that she could discipline her children however she chose. She also threatened to leave the children on the street if the Division did not provide her assistance. T.D. and the children were placed in a hotel but not before she, while being transported by a Division worker, partially opened the van door as if she were going to jump out, because the hotel selected by the Division was not one of her choosing.
The Division ultimately removed the boys, and on June 23, 2008, was granted care, custody and supervision of them pursuant to an abuse and neglect complaint in which the judge determined T.D. was incapable of caring for the children due to her instability and impulsiveness. The boys were placed in foster care, where they have remained and thrived; their foster parents have expressed a desire to adopt them.
On January 7, 2009, T.D. stipulated that she neglected the boys by not providing adequate shelter for them. Following Frank's birth in March 2009, the court awarded care and supervision to the Division, with supervised custody to T.D. In September, the court permitted T.D. to care for Frank independently with the Division continuing care and supervision of them.
The plan continued to be reunification of the family. T.D. attended more than half of her supervised visits with the boys. T.D., however, refused to attend a recommended Mom and Me program at Harmony House and "wasn't really eager" to attend individual counseling, limiting the information she shared with the doctor. She completed the parenting class with the aid of a court order and was compliant with in-home therapy.
By September, however, T.D. affirmed her feelings to the Division caseworker and supervisor that she was just getting by with one child and could not imagine caring for all three boys. She expressed that it would be better for her two older sons to be adopted by their foster family, where they were happy. The foster mother testified that T.D. approached her after a court hearing on September 15, 2009, reporting that she could not handle the responsibility of caring for Quinn and Michael along with Frank, and asked if she were interested in adopting the boys, to which she replied "yes." The Division caseworkers referred T.D. for adoption counseling services to ensure that any decision made was reached without coercion, but T.D. did not avail herself of any of the sessions. T.D. persisted in her belief that she was unable to care for all three children.
On December 15, 2009, the court conducted a permanency hearing. Because T.D. admitted to her incapacity to care for the older boys and had expressed an interest in adoption for them, the court accepted the Division's modification of the goal from reunification to adoption.
T.D. visited with the boys from March to May 2010, then stopped. Additional visits were scheduled by the Division but T.D. failed to attend. She told caseworker Wurtzel that it was difficult for her to see the boys, knowing she was not going to be able to care for them. T.D. did, however, maintain contact with their foster mother, who had provided T.D. with her cell number. They also communicated regarding the boys' well-being by way of text messages, exchanging pictures and information. However, the foster mother testified that she last received a message from T.D. in the weeks before Christmas 2010.
T.D. advised the caseworker she was working many hours and struggling financially. T.D. expressed that her family had promised to help her financially but they were not reliable. She consistently implored caseworkers not to tell her family of her decision about adoption, and when her family members were advised, they were adamantly opposed to the idea.
The Division scheduled four psychological evaluations and bonding assessments for T.D. The first was scheduled in June 2010 with Dr. Sigafoos; T.D. missed it because she forgot about it and the doctor would not reschedule. The Division later scheduled three appointments with Dr. Marano to complete a psychological evaluation of T.D. and comparative bonding evaluation between late June and October 2010. Despite notice of the date and times and the offer of transportation for each of the appointments, T.D. failed to attend any of them. Her only excuse was that Frank was sick for the second appointment and she was unable to find someone to care for him that day.
Dr. Marano thus was only able to complete a bonding assessment of the boys and their foster family. She observed a "strong, positive attachment" between the boys and the family who had become their psychological parents. Dr. Marano recommended placement with the foster family, who sought to adopt and provide stability to the boys, opining that removal from their current caretakers would cause harm.
After October 2010, T.D. stopped returning the caseworker's calls. In December 2010, the court directed that visitation between T.D. and the boys cease. The Division was not aware T.D. wanted reunification until the trial, and T.D. never told the foster parents she had changed her mind.
T.D. testified that she was taking classes to graduate high school and was unemployed, collecting unemployment, and did hair styling on the side, earning about $400 to $500 a month. She testified that in the past thirty-four months, she had worked for sixteen or seventeen months, and had lived in three different apartments, a shelter, two motels, and with her boyfriend's mother. She was currently living in a one-bedroom apartment since November 2010. Her boyfriend, Frank's father, had pending charges for aggravated assault with a deadly weapon and first-degree robbery, but they did not live together. She acknowledged, however, that he had also lived with his mother when she lived there and continued to play a significant part in Frank's life.
T.D. explained that she "needed more time" to become stable, which she believed she was as of trial. She had her own apartment. T.D. advised that she did not need any services from the Division or any help from her family. She acknowledged she had not seen the boys since May 2010.
T.D.'s mother testified that she would help her financially if she got the boys back by providing shelter, a car, "or something." Her mother was receiving Section 8 housing assistance.
T.D.'s mother had been ruled out as a placement in September 2008 because Quinn reported she may have physically abused him, because she was initially unwilling to care for the boys, and because she did not put Michael on her medical insurance. A caseworker also testified that in February 2010, T.D. told her that "if the children were placed with her mother . . . she would be in the same position[] as if she were parenting them herself" because "her mother would expect her to step up and [] do everything that she thought a mother should do . . . [and] she knew she couldn't do it." T.D.'s brother was also ruled out because the Division found his two-bedroom apartment too small to accommodate his own two biological children and two other children who visited him on weekends, as well as Quinn and Michael. T.D.'s mother's cousin also offered herself to the caseworker as a resource, but T.D. said she did not want the children to go to her.
B.
J.B.'s sole visit with the boys was on August 19, 2008 at a McDonalds with his mother, which she had arranged with the Division. Despite his participation in periodic court reviews, there is no evidence J.B. requested additional visits, and none were ordered. During a court proceeding on October 21, 2008, J.B. stipulated that by virtue of his status as a Megan's Law offender he was unable to care for the children. J.B. failed to attend a court-ordered psychological evaluation scheduled for October 23, 2008. He was incarcerated from May 2009 through September 2012 on drug-related charges.
Caseworker Crawford met with J.B. at the Passaic County jail on December 1, 2009, after learning from his mother that he was incarcerated. J.B. offered his mother as a placement and, alternatively, his sister or his grandmother. By letters dated December 22, 2009, the Division ruled out these family members because Quinn had already been in the same foster home for eighteen months and the Division was pursuing adoption. Caseworker Crawford elaborated that none of these family members had maintained a relationship with Quinn. Moreover, caseworker Williams testified that J.B. used his mother's address as his own for the Megan's Law registry, and the Division could not place children in a home of a Megan's Law offender. She spoke with both J.B. and his mother regarding the change in address but neither got back to her to advise that J.B. was no longer using that address as his own. J.B.'s grandmother resided with his mother.
Caseworker Wurtzel testified about her discussion with J.B.'s mother following the modification of the goal to adoption. She explained she was the adoption worker and the Division wanted to keep the boys together. J.B.'s mother responded that "she had only met [Quinn] a couple of times and really didn't have a relationship with [Michael], but she did make it clear that, she would love them and take care of them, if they needed a home." She also felt the boys were stable and happy with their foster family and she did not want to disrupt that, particularly knowing she really did not have a relationship with them.
Wurtzel also spoke with J.B.'s twenty-two-year-old sister, a single mother with two young children. She told the caseworker she worked forty hours a week and made $9 an hour, she was dealing with the court system because her brother had used her car and gotten several tickets under her name, and would need a larger place to take in the boys. She also advised she had a history with the Division both as a minor and as an adult. J.B.'s sister was found not to be a viable candidate at that time.
Dr. Burr testified on J.B.'s behalf as to the bonding evaluation he conducted between the boys and their foster parents. He opined that "the strength of the attachment at this point is significant and substantial" and the boys' needs were being met. He formulated no opinion as to the best interests of the children in the absence of a comparative bonding assessment. Dr. Burr testified that an appointment had been made for a relative to be evaluated with the children but the relative did not appear for the appointment. He acknowledged that the boys would suffer a loss if removed from their foster home and opined that a plan to move them could only "be done for good reason."
On April 25, 2011, Judge Mulvihill rendered an extensive oral decision and judgment terminating T.D.'s parental rights to Quinn and Michael, and J.B.'s parental rights to Quinn. The judge found the Division had proved its case by clear and convincing evidence. Both parents appealed, and we consolidated the cases. By order of November 8, 2011, we granted T.D.'s motion to remand and settle the record. On January 6, 2012, Judge Mulvihill addressed and settled the evidentiary issues, which were the clarification and itemization of the documents entered into evidence.
II.
On appeal, T.D. challenges the court's finding as to all four statutory prongs, specifically arguing the State failed to prove: (1) the first prong because she never directly harmed her children; (2) the second prong because she was capable of eliminating any harm to her children; (3) the third prong because the Division failed to make reasonable efforts and the court failed to consider alternatives to termination; and (4) the fourth prong because there was no bonding evaluation of her with the children. J.B. only challenges the third statutory prong, arguing the Division failed to offer him services and failed to meaningfully explore the family placements he suggested to them. We are not persuaded by these arguments and affirm substantially for the reasons articulated by Judge Mulvihill in his comprehensive oral decision.
The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.
"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)), vacated on other grounds, 163 N.J. 158 (2000). The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383.
In evaluating the best interests of the child, courts follow a four-prong standard, 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;"These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (quotation marks omitted).
(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 [D]ivision 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).]
Judge Mulvihill made express credibility assessments. He did not find T.D.'s mother credible based on "her interest or demeanor." He also found she minimized the problems T.D. had with her children. He noted that her decision in June 2008 was a "colossal misjudgment" that forced T.D. and her children, "out of the house into a situation fraught with danger for the children and separation for [T.D.]." The judge additionally did not find T.D.'s "testimony to be entirely credible in terms of interest or demeanor." He found T.D.'s behavior also contributed to her mother's decision to require she find alternate housing in June 2008. Moreover, T.D. did not provide a plausible explanation as to why she stopped seeing her sons in May 2010 or an "entirely credible" explanation for missing all three bonding evaluations.
In contrast, the judge found the caseworkers' and foster mother's testimony to be straightforward and very credible. He also credited Dr. Marano's and Dr. Burr's bonding evaluations of the boys with their foster family.
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 courts' 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." F.M., supra, 375 N.J. Super. at 259 (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 (l974) (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. Applying this standard, we discern ample evidence in the record to support the trial judge's conclusion that Quinn's and Michael's best interests require termination of T.D.'s and J.B.'s parental rights.
The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348.
Judge Mulvihill found the Division's removal of the boys in June 2008 was necessary to protect them from harm because of T.D.'s "detached behavior, threats to discipline them, . . . erratic behavior . . . in terms of trying to get out of the van," basically being homeless, and lack of parenting skills. Contrary to T.D.'s assertion, the record clearly demonstrates that she jeopardized her sons' safety, health and development in satisfaction of the first prong.
Closely related to the first prong, the second statutory prong requires the Division to show a parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "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." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "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." Id. at 348-49. The withdrawal of nurture and care for an extended period of time is itself a harm that endangers the health and development of the child. D.M.H., supra, 161 N.J. at 379. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). See also N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (reiterating that as public policy increasingly focuses on a child's need for permanency, "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's wellbeing"), certif. denied, 180 N.J. 456 (2004).
The judge recognized that T.D. was maturing but had not fully matured as of the trial; she still had to complete high school and get a job. For eighteen months preceding trial T.D. consistently informed caseworkers, the foster mother, and the court that she could not handle raising the three boys and chose to raise her youngest one and permitted the Division's goal for Quinn and Michael to be modified from family reunification to adoption by their foster family with whom they were happy, thriving, and strongly bonded. In furtherance of that goal, T.D. chose not to participate in any of the four bonding evaluations scheduled by the Division from June through October 2010. She also stopped visiting the boys nine months before the trial commenced and failed to demonstrate that she had a bond with them at the time of trial or would be able to ameliorate any harm if they were removed from the foster home where they had resided for almost three years and reunited with her and Frank.
The judge also expressed concern about the extent of T.D.'s familial support and her reluctance to rely on family members at important times, such as when she needed someone to care for Frank so she could attend the bonding evaluation. Though the judge had no doubt, nor do we, that T.D. loves Quinn and Michael, we are satisfied the Division clearly demonstrated she was unable to become fit in time to provide them the permanency and stability they needed and to which they were entitled.
The third statutory prong requires the Division to make reasonable efforts to provide services to assist a parent to correct his or her circumstances, and to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1(a)(3). A court evaluates on an individual basis the efforts undertaken by the Division to reunite a family, which may include the encouragement of an ongoing parent-child relationship and regular visitation. D.M.H., supra, 161 N.J. at 390. T.D. does not dispute that the Division's initial goal was reunification and in furtherance of that goal the agency provided her a myriad of services, some of which she utilized, and precipitated and encouraged visitation until she unilaterally stopped visiting in May 2010.
Rather, T.D. primarily argues the Division did not make reasonable efforts to help her to get to the bonding evaluation when Frank was sick and the court failed to consider delaying termination for a short period. These arguments are without merit. As the judge noted, even if T.D. had a valid excuse for not attending the single bonding evaluation, she did not provide valid excuses for missing the other evaluations. Moreover, from October 2010 to the trial date of February 2011, T.D. never requested the bonding evaluation be rescheduled. She also provided no basis upon which the court would have been obligated under the case law to provide her time for additional evaluations as an alternative to termination.
We are also satisfied the Division diligently explored and properly ruled out the relative placements suggested by T.D. The record is clear that her mother, brother, and mother's cousin were not viable placements for Quinn and Michael.
The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The ultimate determination to be made "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355.
T.D. may be a capable, caring mother. However, as Judge Mulvihill noted, the foster parents cared for Quinn and Michael for over thirty-four months and became their psychological parents, were committed to adoption, and could give them the permanency and stability that T.D. would not be able to bestow. Moreover, both psychologists recognized that the boys would suffer harm if removed from their foster parents with whom they had formed a significant and enduring bond. Under all the circumstances, it would clearly not do more harm than good for T.D.'s and J.B.'s parental bonds to Quinn and Michael to be terminated and for the boys to have the opportunity to be adopted by their foster family.
J.B.'s arguments are without merit to warrant further discussion. R. 2:11-3(e)(1)(E). He had no relationship with Quinn; he only visited him once in August 2008 and never requested further visitation. He did not attend the psychological evaluation scheduled by the Division. He was incarcerated from May 2009 through September 2012 on drug-related charges. He reported that his girlfriend just had his fifth child while he was in prison. The Division explored and properly ruled out all paternal relatives.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION