Opinion
DOCKET NO. A-1712-11T2
11-26-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. T.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF N.P. AND CM., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Curtin Gouldin, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, 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NOT FOR PUBLICATION WITHOUT THE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 Nugent.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FG-09-129-10.
Joseph E. Krakora, Public Defender, attorney
for appellant (Susan Curtin Gouldin,
Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel and on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Phyllis G.
Warren, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
T.M. (Tracy) appeals from an October 26, 2011 judgment of guardianship of the Family Part terminating her parental rights to her then almost sixteen-year-old daughter, C.M. (Christi), and twelve and one-half year-old daughter, N.P. (Nancy). She argues 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 parties and for ease of reference.
M.S. and S.P., the biological fathers of Christi and Nancy, respectively, surrendered their parental rights to the children's maternal grandmother, K.H., and her husband, A.H., and are not involved in this appeal.
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 overwhelmingly supports the termination of Tracy's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding 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.
Tracy is the mother of two daughters, Christi, born on December 15, 1995, and Nancy, born on February 17, 1999. Tracy has a history of mental illness, and the Division has been involved with her and her family since April 27, 2004.
On May 7, 2008, the Division executed an emergency removal of the children due to Tracy being arrested and incarcerated for a bomb scare. Christi and Nancy were temporarily placed in the care of a family friend. The Division promptly filed a Verified Complaint and an Order to Show Cause for Temporary Custody with Removal and Appointment of a Law Guardian. On that same day, the parties appeared before the court, which granted custody of the girls to the Division based on Tracy's incarceration and the "risk of injury to children in making false public alarms due to possible paranoia and schizophrenia." The girls were placed with their maternal grandmother K.H. (Katherine), and her husband A.H. (collectively the grandparents) in August 2008.
On May 6, 2009, the judge entered a Permanency Order as she found the Division's plan of Kinship Legal Guardianship (KLG) with the grandparents to be acceptable because of Tracy's "unstable mental illness." On October 30, 2009, following numerous compliance reviews, the Division filed a Complaint for Guardianship of the girls.
After several management conferences, on September 20, 2010, Judge Elaine Davis entered a Permanency Order, which approved the termination of Tracy's parental rights followed by the adoption of the children by the grandparents as Tracy had not addressed her mental health issues. On September 19, 2011, the judge entered another Permanency Order approving the identical plan for the exact same reasons. At the conclusion of trial on October 26, 20ll, Judge Davis set forth her findings on the record and entered the guardianship judgment.
II.
At trial, the Division presented the testimony of Dr. Charles E. Daly, a psychologist, and Amy Cottrell, a Division caseworker. Tracy testified on her behalf. The following testimony and evidence was presented in connection with this matter.
The record is replete with interaction by the Division with Tracy and the girls beginning on April 27, 2004, regarding Tracy's mental health concerns and problems supervising her children. The Division referred Tracy for a psychological evaluation in December 2004, during which she indicated bizarre concerns about her daughters with delusional proportions to them. The psychologist diagnosed Tracy with delusion and schizoid personality disorders and recommended she submit to a psychiatric evaluation to determine her need for medication and long-term psychotherapy.
In April 2005, a psychiatrist also diagnosed Tracy with paranoid schizophrenia and a personality disorder and recommended both Tracy and her daughters be referred for counseling, and Tracy take medication. The Division decided against closing its file after investigating an incident in November 2005, involving possible sexual contact by Christi with another minor and lack of supervision by Tracy. On November 10, 2005, the Division and Tracy developed a case plan in which Tracy agreed to supervise Christi at all times and to cooperate with the Division. At that time, the goal was family stabilization. Over the next two years, the Division continued to be involved with the family.
On September 7, 2007, the Division received a referral that Tracy had expressed fear that someone was going to attack her and her children. According to the report, Tracy would not identify "who was going to attack her, why she would be attacked or when she would be attacked," but only that it would be "in retaliation to something (unknown) that occurred a while ago."
The girls were interviewed at school and appeared to be safe and well groomed, and the only concerns they expressed about their mother was that she was attempting to find a job. Tracy told the caseworker the purported pending attack was a miscommunication, and it involved a warrant that had arrived at her house, but was not in her name, so she notified the police. Tracy denied having any problems or worries other than having difficulty finding a job, in part, because she experienced symptoms of anxiety, which made it difficult for her to leave the house.
Tracy also disclosed she had gone to Bayonne Community Mental Health Center (BCMHC) for depression, but no longer had those symptoms. Nevertheless, at her assessment at BCMHC on September 27, 2007, Tracy acknowledged she had previously been diagnosed there with paranoid schizophrenia and was prescribed medication. She was diagnosed with anxiety, fear, depression, specific phobia, situational type, and agreed to attend weekly individualized counseling and undergo a psychological evaluation.
On April 30, 2008, the Division investigated another referral involving Tracy. The reporter indicated that Tracy believed people were out to get her, and people "had been taking her daughter's blood and making the children drink urine." The children denied the accusations and the caseworker did not observe any apparent marks or bruises on the children's arms, so the Division determined the allegations were unfounded.
On May 7, 2008, the Division received a referral from the Bayonne Police Department alleging Tracy wrote the following on a t-shirt: "[h]e sent a car with a bomb/it's in the parking lot/purple [L]esabre." Apparently, Tracy climbed out to the fire escape and tied the shirt to the window of the third floor. A neighbor saw the shirt and called police. When the police arrived at Tracy's apartment, the door was locked and there was no response from inside. The police cleared the building, brought a bomb-sniffing dog to the scene, and placed the fire department on standby. The bomb dog checked both the vehicle and apartment with negative results.
In the interim, Christi and Nancy had walked home from school because Tracy had failed to pick them up as planned. Christi told the police she was unaware of her mother's whereabouts. The girls were released into Nancy's father's care. Eventually Tracy arrived at the apartment. She explained to the police that she hung the t-shirt outside because she was upset that the purple LeSabre had been in the lot and had not been moved for a few months. She had hoped the threat would get the vehicle towed. Tracy was arrested, taken to the hospital where she was cleared psychologically and medically for incarceration, and then charged with risk of causing widespread injuries and raising false public alarm.
While in a holding cell, Tracy told a Division worker she was arrested because she thought someone was trying to kill her and her daughters. She also stated that someone put a bomb in front of her home in order to kill her and her daughters, and she was being threatened and harassed. When asked why Tracy felt this way, Tracy told the caseworker "it could happen" because people were out to get her family and the police did not help.
As a result of this incident, the children were removed from Tracy's custody pursuant to an emergency removal and verified complaint, and by order of May 9, 2008, the Division was granted care, custody, and supervision over them. Physical custody of the girls was transferred to Nancy's biological father, S.P. By order of August 11, 2008, physical custody of the children was transferred to their maternal grandmother Katherine, as S.P. had been arrested and incarcerated.
On October 2, 2008, Christi told her case manager that she did not want to visit her mother anymore. On May 6, 2009, a caseworker discussed the differences between KLG and adoption with the grandparents and then separately with Christi and Nancy. During the conversation Christi stated she wanted the adoption, and Nancy's only concern was her last name. Katherine asked the caseworker to proceed with KLG, and that same day a permanency plan of KLG with Katherine was accepted by the court.
However, on July 14, 2009, Katherine informed the Division that she and her husband changed their minds and now wanted to adopt the girls. She explained she did not want her daughter to "disrupt anything that the girls had going and that she . . . had enough with [Tracy's] excuses and violent outbursts."
On September 29, 2009, Christi was no longer required to visit with her mother. Furthermore, on April 19, 2010, visitation between Tracy and Nancy was suspended due to an incident that occurred on April 15, 2010. During that visit, Tracy twisted Nancy's arm behind her back and pressed her against the wall because of an argument about Nancy's hair.
Numerous services were offered to Tracy following her arrest and removal of the children. On May 5, 2008, she was admitted to Jersey City Medical Center (JCMC). She was discharged on June 3, 2008, with the diagnosis of "Delusional disorder, persecutory type," and was prescribed Risperdal and Lithium. Additionally, she was referred to intensive day treatment.
Tracy began receiving treatment at JCMC's Acute Partial Hospital day program on June 4, 2008. The services she received included: a comprehensive psychiatric evaluation, psychiatric monitoring, nurse monitoring for medication management, and group/individual counseling. Tracy completed the program on September 4, 2008, but failed to follow-up with her referred outpatient services scheduled for September 18, 2008. Tracy scheduled a second outpatient appointment for October 15, 2008, but again failed to attend. Consequently, JCMC closed her case due to a loss of contact.
On February 6, 2009, Tracy tested positive for marijuana. By February 26, 2009, Tracy started to decompensate during court-ordered substance abuse therapy at Project Second Chance, an outpatient drug treatment facility at Christ Hospital, and was referred for immediate psychiatric care. Project Second Choice refused to allow Tracy back into the program until she saw a psychiatrist who deemed her mentally stable to resume treatment. She was referred to psychiatric treatment on three separate occasions but failed to attend any of these appointments.
On March 19, 2009, during her ten-month placement family review, Tracy explained that she did not want to participate at Project Second Chance because it was geared towards substance abuse therapy and she "was not a 'druggie.'" She also stated that she wanted her children placed with their biological fathers even though both were currently incarcerated. On April 6, 2009, she was dismissed from Project Second Chance because of missed treatments and failure to attend a scheduled psychiatric evaluation.
On June 19, 2009, Tracy submitted to a court-ordered psychiatric evaluation by Dr. Larry E. Dumont. Dr. Dumont described her as "slovenly groomed, hostile, young adult female who, because of her unkempt status and poor hygiene, actually looks older than her stated thirty-one years of age" and "quite angry and irritable." He diagnosed her with schizoaffective disorder, post traumatic stress disorder, episodic cannabis abuse, and schizotypical personality disorder, and recommended she participate in ongoing individual therapy, attend a partial hospitalization program, and submit to medication management of psychotropic medication to target her symptoms of paranoia, agitation, and mood liability.
Given her history of being noncompliant with medication, he suggested "a depot medication, such as Prolixin Decanoate or Haldol Decanoate, a medication that could be given by injection only once a month." He also opined that "her children should remain with their grandmother in a kinship legal guardianship situation."
Catholic Charities' Family Resource Center provided therapy to Tracy, however, on July 14, 2009, it was reported she was missing sessions and making excuses for why she could not attend. On August 11, 2009, she was referred for another substance abuse assessment. Two days later, she was sent a letter from the Enhanced Care Coordination-Intense Case Management Coordinator informing her of her third appointment with the Substance Abuse Initiative. Despite being advised by letter that if she failed to keep her appointment, her welfare benefits could be removed, Tracy did not attend the appointment, and lost her benefits.
On October 14, 2009, Tracy was given a psychological evaluation by Dr. Daly. After administering several standard tests, he concluded Tracy perceived her children as objects for adult gratification, and it was likely she would use her children to meet her own needs. During the evaluation, Tracy admitted she did not know what her goals were for her children as she was unemployed and her welfare benefits had not been reinstated. Dr. Daly opined that Tracy was unable to parent her children currently or in the near future, noting her "inability to even minimally cooperate with the mental health services that have been provided to her in the past."
On November 4, 2009, Tracy was evaluated by Preferred Children's Services, and she admitted she had used the following drugs in her lifetime: alcohol, marijuana/hashish, cocaine-powder, ecstasy, LSD, PCP, and other hallucinogens. In the thirty days prior to the evaluation, she had experienced serious depression. She attended a partial hospitalization program at BCHMC, but was discharged on December 29, 2009, because of her threatening and aggressive conduct and refusal to meet with a psychiatrist for possible medication management. The caseworker attempted to re-refer Tracy to other substance abuse programs, but they would not accept her because of her refusal to take medication.
On January 15, 2010, Dr. Daly conducted a bonding evaluation of Tracy and the girls. He found a bond still existed between them, but it was more of a "wished for" state of being. He concluded that Tracy's mental illness caused such a severe level of discomfort in the girls' lives that they chose not to live with her and realized they were better off that way. He opined that Tracy loved her daughters and was bonded to them, but "her psychiatric illness prevents her from functioning in a way that makes the girls comfortable and . . . her behavior causes them ample pain and suffering . . . and [it] actually hurts them to see their mother in such a state of cognitive disarray."
That same day Dr. Daly conducted a bonding evaluation of the girls and their grandparents. He concluded the girls "have a positive and productive bond" with their grandparents. He also stated, "the girls are grateful for the stability . . . and that, although they do not discount their mother in any way, they realize that their lives will be better served by continuing to live with their grandmother."
Dr. Daly testified that the best plan for the children would be adoption by their grandparents. He opined the girls would not be irreparably harmed if they never saw their mother again and explained "they've been conditioned for . . . a very long period of time not to have expectancy with regard to mom." He also testified that "[i]f and only if [Tracy] were stabilized for a considerable period of time" would there be a benefit to the girls having a continuing relationship with her."
On November 9, 2010, Tracy was arrested for allegedly assaulting a sheriff's officer at the Hudson County Courthouse before a scheduled hearing. Dr. Daly conducted a two and one- half hour evaluation of her there on November 18, 2010. During the evaluation, Tracy talked about a character called "It" being in charge of her life, and when asked who "It" was, answered that, "It might be you." Dr. Daly opined that this type of behavior is a symptom of her mental illness and indicates she is not able to parent in an effective, competent way.
By September 20ll, Tracy was back in custody as a result of this incident, and she was still in custody at the time of the guardianship trial. According to her defense counsel's brief, Tracy entered a guilty plea to a disorderly persons charge on April 19, 2012.
He also re-evaluated Tracy at his office on July 18, 2011, describing her as extremely disheveled. He noted Tracy still appeared to be very frightened, noted her dialogue hopped from one subject to another, and the content of her dialogue was "totally delusional." He concluded that Tracy "is still a very ill woman who very well could be on the edge of disaster with regard to her own physical well being." He opined that her mental illness was evident because of the disjointed way she presented herself. Moreover, Tracy was not taking her medication. Dr. Daly reported that "[i]t is quite clear that [Tracy] is now and, more likely than not, will never be able to take care of her children."
Cottrell testified about the Division's involvement with Tracy. She explained that during the agency's seven-year history with Tracy, she never had a steady job and had been on and off welfare. After being incarcerated in September 20ll, Tracy was evicted from her home because the housing authority concluded she had been setting small fires in her apartment. Cottrell also testified that Tracy had made false allegations regarding the grandparents. Cottrell also gave numerous examples of Tracy's bizarre behavior — for example, during one visit with her daughter, Tracy asked the caseworker if she knew "if someone's soul was taken from them, if it could ever be returned."
Tracy testified briefly, evidencing a delusional, disjointed thought process. She also interrupted several of the court proceedings on a few occasions, including the guardianship trial, exhibiting irrational and delusional tendencies. For example, as the guardianship trial was concluding, Tracy blurted out to an unknown person, "John, you keep getting these things from me, because of your position — you understand me?"
At the conclusion of trial, Judge Davis performed the statutory analysis and entered an order terminating Tracy's parental rights to Christi and Nancy. The judge found the Division had proved its case by clear and convincing evidence. This appeal ensued.
III.
On appeal, Tracy challenges all four statutory prongs, arguing:
I. THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE TRACY'S PARENTAL RIGHTS IN ORDER TO PROTECT CHRISTI'S AND NANCY'S BEST INTERESTS.
A. THE DIVISION FAILED TO PROVE THE INTEGRATED FIRST AND SECOND PRONGS OF THE BEST INTERESTS TEST AS TRACY HAS NOT HARMED
CHRISTI OR NANCY, AND TRACY IS CAPABLE OF ADDRESSING HER MENTAL HEALTH ISSUES.
B. THE DIVISION FAILED TO PROVE THE THIRD PRONG OF THE BEST INTERESTS TEST BECAUSE IT DID NOT PROMOTE KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS.
C. THE DIVISION FAILED TO PROVE THE FOURTH PRONG OF THE BEST INTERESTS TEST BECAUSE TERMINATION OF TRACY'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
The law governing our analysis is well known. "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." 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, articulated in N.J. Division of Youth and 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;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)).
(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).]
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." 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 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable 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 and citation omitted). Applying this standard, we discern ample evidence in the record to support the judge's conclusions that Christi and Nancy's best interests required termination of Tracy's parental rights.
Judge Davis found the first prong of harm was clearly satisfied as the children had been without their mother's care and affection due to a combination of Tracy's mental illness and her use of illegal drugs. Regarding prong two, Judge Davis found Tracy unwilling to mitigate the harm because she was given numerous opportunities to medicate but "failed to comply or indicated that she did not want medication because it made her feel differently." The judge also declared defendant had neither a home nor a plan, and since she was incarcerated and had lost her apartment, "the prospect of curing this problem in the foreseeable future is nonexistent." Furthermore, the judge saw Tracy's decomposition and noted Tracy "has given answers to questions that [made] no sense whatsoever."
Tracy challenges this finding, emphasizing the evidence that her daughters were well cared for, were clean, and were dressed appropriately; her family's apartment was adequately furnished and had plenty of food; her daughters expressed no worries, fears, or concerns; and there were no findings of abuse or neglect. She also contends she is capable of addressing her mental health issues. We disagree.
To meet the first prong of the termination statute, the Division must show there is a harm that threatened the children'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 harm arising from the parent-child relationship over time on the child's health and development." Id. at 348.
Moreover, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious 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.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." M.M., supra, 189 N.J. at 289.
Prongs one and two are related, as the second prong considers the parent's failure to provide even minimal parenting to his or her children. D.M.H., supra, 161 N.J. at 379. The second prong of the statute is aimed at determining whether the parent has cured or 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. Id. at 348-49. This prong "may be met by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home[.]" K.H.O., supra, 161 N.J. at 353.
Because of her mental illness and unwillingness to take medication, Tracy has been unable to provide nurture and care for her children for an extended period of time. This by itself is harmful to the children. Since 2004, the Division provided Tracy with psychological and psychiatric evaluations, and a myriad of programs to assist her in coping with and treating her mental illness. For the most part, she has been noncompliant and refuses to take the necessary steps for a successful treatment, including medication. During her last stay at BCMHC, she was discharged because of threatening and aggressive conduct and refusing to meet with a psychiatrist for possible medication management. These facts are indicative of Tracy's inability to eliminate the harm facing her children and provide a safe home.
In addition, despite substance abuse evaluations and programs, she continues to use drugs, which exacerbates her mental health issues. That Tracy had continued to decompose through the trial date clearly indicated continuing harm to the children if they were returned to her custody. Moreover, over the years Tracy missed multiple treatment sessions and made excuses for why she did not attend, which ultimately resulted in her losing her welfare benefits. Additionally, Tracy had no home, having been evicted due to her own somewhat bizarre actions, and therefore cannot provide shelter for her children.
As for prong three, Judge Davis found the Division provided Tracy with a variety of services over a period of time, and she failed to take advantage of them. She also found there was no alternative to the children remaining with their grandparents, who wished to adopt them and no longer wanted to pursue KLG.
Tracy does not dispute the multitude of services offered to her but argues the judge erred in her analysis of the third prong of the best interests standard because she did not consider the alternative of KLG. Tracy's argument is factually and legally without basis.
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 potential availability of KLG cannot be used as a defense to the termination of parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004). As the Court explained,
The plain language of the [KLG] Act, as well as its legislative history, establish
kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights.
[Id. at 512-13 (internal citations omitted).]
The Division clearly and convincingly established it made more than reasonable efforts to help Tracy stabilize her mental health issues, and it attempted to achieve reunification. The Division explored KLG with the grandparents. At first Katherine was amenable to the idea. However, as time passed and as Tracy's behavior became more bizarre, Katherine made the difficult decision that the only alternative would be terminating her daughter's parental rights so Katherine could adopt the girls. The girls have been with their grandparents since 2008, and have clearly bonded with them. Judge Davis thus was not required as a matter of law to compel the grandparents to proceed with KLG.
In finding the fourth prong, i.e., that "termination of parental rights will not do more harm than good to the child[ren]," K.H.O., supra, 161 N.J. at 354-55, Judge Davis referenced Dr. Daley's evaluations and testimony. She concluded there would be no irreparable harm, particularly because the placement was with a relative, and because the children had never been able to count on their mother. Tracy challenges this finding, arguing her daughters are strongly bonded to her as confirmed by Dr. Daly; her visits with her daughters have been positive; and her daughters are old enough to express their wishes for a continued relationship with her and to understand her mental illness. We are not persuaded by her arguments and are satisfied the evidence clearly demonstrates satisfaction of the fourth statutory prong.
While children will undoubtedly suffer from some degree of loss from the termination of their parent's parental rights, they cannot and should not be expected to wait for their mother to "get herself together." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004). There comes a time when children's needs for permanency outweigh the parent's right to maintain a relationship with them. K.H.O., supra, 161 N.J. at 355. This is clearly such a case.
The fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The Supreme Court has stated "[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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
Contrary to Tracy's assertion, the girls have not "professed a desire for a continued relationship with [her]." Christi told her case manager on October 2, 2008, that she did not want to visit her mother anymore. The record is replete with bizarre episodes involving Tracy's interactions with the girls and with her own parents. After performing multiple evaluations and bonding exercises, Dr. Daly recommended the girls be adopted by their grandparents. The girls also expressed such a preference. Additionally, the Law Guardian advocated for the termination and adoption. The girls have been with their grandparents since 2008, and have achieved stability and permanence that they never would have achieved had they remained with Tracy. They have an opportunity to be adopted and be a part of a loving, nurturing family.
Because of the relative placement, if Tracy cooperates in mental health and substance abuse treatment, she has the potential to visit the children and continue a relationship with them. That will be up to the grandparents based on their assessment of the children's best interests.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION