DOCKET NO. A-4736-10T1
Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-21-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Katherine J. Bierwas, Designated Counsel, on the brief). PER CURIAM
Defendant H.V., Sr. (Henry), the biological father of H.V., Jr. (Howard), born December 26, 2002, appeals from the April 20, 2011 order terminating his parental rights to Howard. Defendant contends that plaintiff New Jersey Division of Youth and Family Services (the Division) failed to prove that termination was in Howard's best interests pursuant to the best interests of the child test contained in N.J.S.A. 30:4C-15.1(a). After carefully reviewing Henry's arguments in light of the record and governing legal principles, we affirm.
We use pseudonyms to protect the parties' privacy.
We discern the following facts from the record. The Division received a referral on April 16, 2004, concerning Howard and his mother D.B. (Doris) from a staff member at St. Joseph's Medical Center. The reporter stated that Howard had been admitted and diagnosed with "failure to thrive," and the mother had engaged in verbally abusive behavior toward her sick child. The Division determined the neglect allegations were unsubstantiated, but offered the family services due to concerns with Doris's parenting skills and Howard's health issues.
Doris voluntarily surrendered her parental rights to Howard on September 7, 2010 and thus is not part of this appeal.
In August 2005, the Division again received a referral from a staff member at St. Joseph's, stating that Doris was at the emergency room because she had been smoking marijuana laced with rat poison. Doris also tested positive for cocaine. On August 9, 2005, the Division filed for and obtained custody of Howard. The Division then attempted to supply the mother with services to effectuate reunification with her son.
Because Doris did not participate in the services, in August 2006, the Division asked Henry to take custody of Howard. However, he could not assume custody immediately because of his cocaine addiction. The trial judge ordered the Division to provide services to him, including a substance abuse assessment, out-patient drug treatment, a psychological evaluation, and parenting skills classes. Henry cooperated with the ordered services at the time, as did his live-in girlfriend, who was willing to help parent Howard. By May 2007, after Henry had successfully completed the necessary services, the Division had given custody of the child to Henry and closed the case.
From May through November 2008, the Division received several referrals from staff at Howard's school reporting concerns about Howard's care and his absences from school. The Division investigated each complaint and determined the circumstances did not constitute abuse or neglect. For example, on November 2, 2009, the Division received a referral from a staff member at Howard's school, stating that the child was very dirty, came to school in the same clothing and undergarments for weeks at a time, appeared malnourished, had missed ten days of the new school year, and had a bruise on his hip. The Division's investigation determined Howard's babysitter was responsible for the bruise and his poor hygiene but the allegations of neglect concerning Henry were unfounded.
On December 28, 2009, the Division received a report from the Paterson Police Department, stating that Henry, while with his son, had been arrested the previous day purchasing crack cocaine. He also appeared to the arresting officers to be under the influence of drugs. The Division later learned that Henry had been arrested in October 2009 for selling cocaine.
When arrested, Henry was with J.M. (Jason), a Tier Three convicted sex offender. According to Henry's initial statement, Jason took care of his son for extended periods of time, but he denied knowing Jason was a convicted sex offender. Later he reported that Howard had only stayed with Jason twice, and asserted that Jason would not harm his son because Jason was his friend.
On December 29, 2009 the Division filed for and was granted custody of Howard. Henry requested that the Division place Howard with his former girlfriend, but she was ruled out due to unsuitable housing. The Division placed Howard in a resource home with M.B., who has remained his foster mother and has expressed her commitment to adopt him. On April 13, 2010, at the fact-finding hearing, Henry stipulated to neglecting his son due to his substance abuse issues and resultant homelessness.
Since he was an infant, Howard had been diagnosed with global developmental delays, failure to thrive, Russell Silver Syndrome, hypotonia and hyperactivity. On March 2, 2010, Howard was evaluated by Dr. Patel, a pediatric neurologist, who found an organic neurological impairment manifesting with minor dysmorphic features, borderline microcephaly, global developmental delays, deficiency in fine motor, graphomotor, visual motor, self-care, gross motor skills, speech articulation problems and language-based learning difficulties. Howard receives special education services in school and has an in-home behavioral therapist. According to the Division caseworker, Howard is receiving excellent care and is thriving in his current resource home.
While Henry was incarcerated, the Division arranged a psychological evaluation and a substance abuse assessment. Henry remained incarcerated until September 2010, when he pled guilty to second-degree endangering the welfare of a child, third-degree possession of a controlled dangerous substance, third-degree possession with intent to distribute a controlled dangerous substance and third-degree possession of a controlled dangerous substance in a school zone. He was sentenced to Drug Court with five years' probation, including the requirement of successful completion of all drug court program phases. He has since completed a six-month inpatient drug program at Integrity House, and has transitioned to Eva's Village, another residential drug treatment program.
After his sentencing, Henry requested visitation with his son. The Division opposed the request, based on the statutory prohibition against visitation by a person convicted of endangering the welfare of a child, absent proof by clear and convincing evidence that visitation would be in the child's best interests. N.J.S.A. 9:2-4.1b. The trial judge denied visitation until defendant made a formal motion with the requisite best interests showing. No such motion was made during the litigation, and no visitation occurred.
The Division filed a complaint for guardianship of Howard on August 25, 2010. The guardianship trial took place on April 4, 2011. Dr. Donna LoBiondo, a licensed psychologist, testified for the Division concerning her evaluation of Henry and the bonding evaluation between Howard and his foster mother. Her testing disclosed that Henry had an IQ of 63 but probably functioned in the borderline intelligence range and that he read at a first grade level. She observed that he failed to take responsibility for his poor selection of babysitters and caretakers, rationalized his poor choices and portrayed himself as a victim of the criminal justice and DYFS systems. Henry also informed Dr. LoBiondo that he had only tried cocaine once, did not have a drug problem, and only claimed to be an addict so he could get into a drug treatment program rather than go to jail. He also told her he would say whatever he had to in order to avoid jail.
During the evaluation, Henry told Dr. LoBiondo that Howard had been slow to talk, but now he talked normally, which was contrary to the doctor's observation of Howard's severe articulation problem. Henry also reported that Howard had cerebral palsy, which was not confirmed in any of his records. In Dr. LoBiondo's opinion, Henry was unable to understand Howard's challenges and to effectively advocate for him. Henry did not think Howard would suffer any harm if he were removed from the foster parent's home and reunited with him. Based upon the entire interview, Dr. LoBiondo concluded that Henry did not have the capacity to safely parent his special needs child. While she thought Henry's drug abuse issues compounded this deficiency, even if he became and remained sober, this inadequacy would continue.
As a result of her bonding evaluation, Dr. LoBiondo concluded that M.B., Howard's foster mother with whom he had lived since December 2009, and Howard had a strong mutual bond. She observed that the behaviors between the adult and child were typical of a securely attached child and a primary attachment figure who plays a parental role in a child's life. Although she did not evaluate Howard's bond with Henry, she opined that given his developmental delays and his lack of contact with Henry for over a year, the close attachment she observed to his foster mother would mitigate any harm from the termination of Henry's parental rights. On the other hand, in her opinion, Howard would suffer serious and enduring harm if removed from the foster mother, which Henry would not be able to ameliorate.
Additionally, Dr. Alison Strasser Winston, a licensed psychologist, testified for the Law Guardian about her bonding evaluation of Howard and his foster mother. She reported that the child viewed M.B. as a psychological parent and referred to her as "mommy." She determined that the caretaker was meeting the child's needs for affection, companionship and intimacy, and he would be harmed if removed from this nurturing and secure home. While Dr. Winston did not evaluate the relationship of Henry and Howard, in her opinion, the foster mother could mitigate any harm to the child from the loss of the relationship with Henry.
Defendant's reported plan for caring for his son after his release from Eva's Village was to reside with a friend until he could secure a job and an apartment. At the time of the trial, Henry had at least eight more months at Eva's Village before completing the program, and his child could not reside with him there.
In his oral decision on April 20, 2011, Judge Sabbath concluded that the statutory grounds for termination pursuant to N.J.S.A. 30:4C-15.1 had been established by clear and convincing evidence. He found the testimony of the two expert witnesses to be credible. Judge Sabbath observed that while Henry did not testify, his statements in the record to the two experts and others were not credible; he made many inconsistent statements, particularly about the extent of his drug use, and even admitted that he would say whatever he had to in order to protect himself.
Regarding the first prong of the best interests test, the judge found that Henry had endangered his child's safety, health and development in the past, and would likely continue to do so. While having custody of his son, Henry had engaged in criminal behaviors, which ultimately resulted in his incarceration, making him unavailable to the child. The judge pointed out that Henry's selling and using drugs posed an obvious threat of considerable harm to the child's welfare. Further, the judge found that Henry showed extremely poor judgment by leaving the child with inappropriate caregivers, including a babysitter who both physically abused him and did not attend to his hygiene, and a convicted sex offender. Judge Sabbath opined that Howard's frail physical state and limited cognitive abilities increased the harm caused by defendant's actions.
Addressing the second prong, concerning the parent's unwillingness or inability to eliminate the harm, the judge concluded that Henry would not be able to eliminate the harm facing his son due to his limitations and his unresolved drug abuse issue. The judge pointed out that Henry claimed on various occasions to have been using cocaine since he was fifteen years old, just for the past five years, or only on a single occasion, and he also claimed he could stop using drugs any time he wanted. The court opined that Henry's chances of rehabilitation were compromised by his dishonesty and his unrealistic belief in his ability to control his addiction. The court also found compelling the expert witnesses' testimony that delay of permanent placement would cause further harm to the medically fragile child.
The court found that the third prong of the best interests tests was established as the Division had made reasonable efforts to provide services for the family, but Henry thwarted these attempts by continuing to behave in a self-destructive manner. Further, the judge noted that Henry's own poor choices led to his incarceration and in-patient drug treatment, which prevented provision of many services.
Finally, the judge found that terminating parental rights would not do more harm than good. The judge noted that Henry did not understand his son's special needs, at times denying his son had any problems, and at other times expressing a baseless belief that his son had cerebral palsy. The judge concluded that all the evidence, including the undisputed expert opinion of Dr. LoBiondo, demonstrated that Henry was not a safe or adequate parent and did not have the capacity to become one in the foreseeable future. Crediting the undisputed testimony of both expert psychologists, the judge found that removing Howard from his foster mother's care would expose him to serious and enduring psychological harm that his father would not be able to ameliorate or remediate.
Consequently, on April 20, 2011, Judge Sabbath terminated Henry's parental rights to Howard. This appeal followed.
On appeal, defendant raises the following issues:
D.Y.F.S. FAILED TO PRODUCE EVIDENCE DEMONSTRATING IT MET ITS BURDEN TO SATISFY THE SECOND, THIRD AND FOURTH PRONGS OF N.J.S.A. 30:4C-15.1(A).
POINT A: D.Y.F.S. FAILED TO PROVE THAT DEFENDANT IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIS CHILD.
POINT B: D.Y.F.S. FAILED TO SATISFY THE THIRD PRONG AS IT FAILED TO PROVIDE CERTAIN SERVICES TO HELP HENRY CORRECT THE CIRCUMSTANCES WHICH LED TO HIS SON'S PLACEMENT OUTSIDE THE HOME.
POINT C: THE TERMINATION OF HENRY'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
We note first the legal principles that govern our consideration of these arguments. "'[P]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children . . . .'" N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 9 (1992)). In view of that fundamental interest, the law "clearly favors keeping children with their natural parents and resolving care and custody problems within the family." Id. at 165 (citation omitted). However, parental rights are not absolute; the State also has a "parens patriae responsibility to protect the welfare of children" in situations where the child's parents are "unfit or the child has been neglected or harmed." Id. at 166.
When deciding an application for termination of parental rights under N.J.S.A. 30:4C-15.1a, a trial court must apply the "best interests of the child" standard. The statute authorizes a court to terminate parental rights only if the Division proves by clear and convincing evidence that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 167 (citations omitted); N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, our scope of review of the trial judge's findings of fact is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We must uphold the trial court's factual findings so long as they are supported by "'adequate, substantial and credible evidence in the record.'" N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (1993)). However, we owe no special deference to a trial court's interpretation of the law and legal consequences that flow from the facts. N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).
Guided by these principles, we are persuaded that the record contains clear and convincing evidence proving all four prongs of the best interests of the child standard. Judge Sabbath carefully reviewed the evidence presented by the Division and concluded that the Division satisfied the legal requirements for an order terminating Henry's parental rights. His opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), and is fully supported by the record. We have been presented with no meritorious basis for disturbing the judge's findings of fact or conclusions of law. We affirm substantially for the reasons stated by Judge Sabbath in his well-reasoned opinion. We add only the following brief comments.
The fourth prong of the best interests standard requires the court to find that termination of parental rights will not do more harm to the child than good. The question under this 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 resource parents." In re K.H.O., 161 N.J. 337, 355 (1999). This determination generally requires an expert to evaluate the comparative strengths of the relationship between the child and the biological parent, and that of the child and the resource parent. Ibid. (citing J.C., supra, 129 N.J. at 25). See also N.J. Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).
Here, we recognize that during the trial the Division did not provide a bonding evaluation of defendant and Howard. Nonetheless, in light of the particularly compelling and undisputed evidence of Howard's numerous special needs that Henry is not capable of meeting and the foster mother is successfully addressing, the strong mutual bond between Howard and the foster parent resulting in Howard considering her his psychological parent, and the credible expert testimony that the foster parent could mitigate any harm resulting from the termination of Henry's parental rights, we are satisfied that the failure to provide a comparative bonding in this instance did not prevent the Division from meeting its burden under prong four.
The record does not contain the basis for this omission. However, we glean from the Law Guardian's brief that no bonding evaluation occurred because, due to his child endangering conviction, Henry was prohibited from visitation pursuant to N.J.S.A. 9:2-4.1.
We find that the record contained sufficient evidence for the judge's determination that this child needs the stability and nurturance provided by the foster mother and termination of Henry's parental rights will not do more harm than good. "When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." N. J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION