DOCKET NO. A-5317-12T4
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs). Jennifer Russo-Belles, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Russo-Belles, on the brief). Christopher A. Huling, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-0002-13. Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs). Jennifer Russo-Belles, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Russo-Belles, on the brief). Christopher A. Huling, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief). PER CURIAM
Defendant K.D. appeals from a June 10, 2013 judgment, entered following a trial, which terminated her parental rights and awarded guardianship to the Division of Child Protection and Permanency (Division) of her two minor children, S.R.M. and E.D.M., Jr., for the purposes of securing their adoption. We note the guardianship judgment also terminated the parental rights of her partner, E.D.M., Sr., the children's father, who executed an identified surrender of his parental rights on March 22, 2013, and was dismissed from the litigation. E.D.M., Sr., has not challenged the underlying termination of his parental rights.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming 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-10(b)).
In this appeal, defendant argues the trial judge erred in assessing the Division's evidence, which she maintains was insufficient to satisfy each of the four prongs of the statutory test, N.J.S.A. 30:4C-15.1(a), to prove guardianship was in the best interests of the children. Following our review, we reject defendant's arguments as unfounded and affirm substantially for the reasons set forth in the oral opinion rendered by Judge John C. Porto.
These facts are found in the trial record. In addition to S.R.M. and E.D.M., Jr., defendant has an older child, who was involved in the Division's investigation and placed in a resource home. However, in this opinion, we confine the discussion of the facts to those related to the two children.
The Division first became involved with the family in late 2007, when defendant was pregnant with S.R.M. The Division received a referral from an anonymous caller who reported E.D.M., Sr. had beaten defendant several times, causing her to be bruised from head to toe. The Division investigated. Defendant was not living with E.D.M., Sr., and, although she described prior instances of domestic violence by him, she denied the current allegation. The Division opened the case to provide services after learning defendant had tested positive for marijuana during her pregnancy. Defendant was referred for a substance abuse evaluation and random urine screenings. Further, the Division scheduled domestic violence counseling at the Coalition Against Rape and Abuse (CARA).
Defendant did not complete the substance abuse evaluation until March 2008. She was referred to Level 1 intensive outpatient treatment, but declined to participate and was discharged.
Defendant and E.D.M., Sr. reunited and, in June 2008, defendant requested the Division close her case. She stated she believed the facts related in the referral were untrue and she declined to participate in services.
In February 2009, a second referral was received, this time alleging E.D.M., Sr. bloodied defendant's nose, while the younger children were home. The Division investigated and family members denied such an incident occurred, though defendant admitted she had called police following an earlier argument. The Division confirmed the reported abuse and filed a complaint for care and supervision; however, the children were not removed from defendant's care. E.D.M., Sr. was restricted from the home and defendant attended and completed recommended services.
Defendant's first psychological evaluation was performed on June 30, 2009, by Mariann Pokalo, Ph.D. Dr. Pokalo found defendant suffered no intellectual or perceptual functioning deficits and displayed clear and rational thought patterns; however, defendant's personality profile was one of dependency and low self-esteem. Dr. Pokalo recorded defendant's statement that she "absolutely denied" involvement in abusive relationships or being a victim of domestic violence. Defendant emphatically expressed her goal to reunite with E.D.M., Sr. "as a family." Dr. Pokalo recommended defendant participate in individual therapy and couples therapy with E.D.M., Sr.
The Division opposed defendant's request to allow E.D.M., Sr. to return to the home. It learned of his past mental health treatment and possible abuse of prescription medication. Defendant was referred to Cape Counseling Services (CCS) for individual therapy and either couples or family therapy.
Defendant and E.D.M., Sr. commenced family-centered parenting classes at CCS. After a few months, they began missing appointments. In September 2010, their counselor, Michelle Keating, wrote the family made progress when fully participating in treatment, but the parents missed five scheduled appointments in the past four months. Additionally, defendant completed family preservation services but only sporadically attended CARA counseling sessions. She refused to attend substance abuse treatment.
Additional referrals resulting from the reported volatile relationship between defendant and E.D.M., Sr. were investigated, but the family denied the claims. In September 2010, defendant revealed to her caseworker, Aileen Bingham, a desire to separate from E.D.M., Sr. Defendant and the children were transported to the CARA shelter. Defendant stayed for two or three days, then returned home. She told Bingham the shelter was not the place for her and E.D.M., Sr. was "not that bad of a guy."
Following a hearing on May 4, 2011, the court entered an order continuing the prior visitation restrictions. However, the order contained a provision stating E.D.M., Sr. could return to the home upon consent of all counsel and so long as he and defendant continued to comply with services. The Division later discovered defendant allowed E.D.M., Sr. in the home, despite that he had not completed a substance abuse assessment or treatment. The Division received a report E.D.M., Sr. had been arrested at the residence while the children were present because he failed to appear for a court date. The Division concluded E.D.M., Sr.'s presence at the house was a violation of the court's restraining order. Caseworkers who went to the home on June 14, 2011 found it was disheveled and dirty. The Division found signs E.D.M., Sr. was living in the home and effectuated a Dodd removal.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).
Judge Porto upheld the children's removal, based on the failure to comply with the terms of the consent order and in light of the Division's clear objection to E.D.M., Sr.'s return while not attending drug counseling. Defendant's counsel reiterated the misunderstanding regarding the terms of the order and noted he told defendant the consent order seemed to suggest E.D.M., Sr. could return home. The judge did not modify the order, in part because defendant had tested positive for opiates. The children were placed in pre-adoptive resource home in Pennsylvania, where the older sibling also resided.
Initially, defendant was anxious to comply with drug testing in order to secure the children's return to her home. She attended a drug evaluation and was referred to Level 2.1 intensive outpatient treatment at Cape May Counseling (CMC). Weeks later, she attended an intake appointment at CMC, but missed two subsequent counseling appointments and, ultimately, was discharged.
Defendant failed to attend psychological and parental capacity evaluations. She did attend therapeutic visitation with the children supervised by Robin's Nest, and sought visitation separate from E.D.M., Sr., after the two had a physical altercation. However, defendant was then incarcerated for shoplifting and missed the therapeutic visit and rescheduled evaluations.
Another attempt at substance abuse treatment was extended to defendant by the Division. However, she missed appointments and ultimately was discharged for noncompliance. The parents' situation then became more complicated when they were evicted in January 2012. Defendant's communication with the Division became intermittent. All in all, since the children were removed, defendant had not completed or regularly attended programs arranged by the Division, including Cape Assist for individual counseling, Cape Counseling for parenting skills classes, Families Matter's Nurturing Parenting Program for parenting skills, and Choices program for substance abuse evaluation and treatment.
After a difficult start because of logistics, supervised visitations in Pennsylvania generally went well. Some concerns surfaced because defendant made promises suggesting the children could come home soon and that she would buy a house for them. Further concern arose in June 2012, when defendant declined the request to submit a urine screen. In the spring of 2012, defendant mentioned a plan to move to Pennsylvania; however, for the next several months her whereabouts were unknown. By fall 2012, defendant was again living in Cape May County.
Jennifer Perry, Psy.D., conducted a psychological evaluation on March 22, 2012. Dr. Perry diagnosed defendant as suffering from major depressive disorder and dependent personality disorder. She noted that S.R.M. and E.D.M., Jr. had an obvious attachment to defendant and defendant generally engaged in positive interactions with the children. She concluded defendant's contact with the children must be supervised until she completed individual therapy, CARA counseling, parenting skills classes, and therapeutic visitation.
On May 20, 2012, defendant was arrested on an outstanding warrant. A State Police search of her bedroom yielded copies of a forged MRI report and altered referral forms. Also, in her purse the police found various pills including amphetamine, oxycodone, morphine, and a suspicious blue, powdery substance. Defendant was charged with obtaining controlled dangerous substances (CDS) by fraud, conspiracy to obtain CDS by fraud, falsifying records, forgery, possession of CDS, and other offenses. The Division was informed by defendant's physician of prior prescriptions he wrote to relieve her back pain; however, no evidence of current prescriptions by this physician or any other was produced.
In October 2012, defendant and E.D.M., Sr. were again arrested, this time on charges of theft and operating an unlicensed business. Defendant was detained from mid-November through mid-December 2012. She contacted the Division when released; however, repeated calls by her caseworker thereafter went unanswered. A search for defendant through the Division's Litigation Unit and the Human Services Police was undertaken. The Division was not able to communicate with defendant again prior to trial. At the time of the trial, defendant had not contacted the children since approximately October 25, 2012.
Defendant was indicted in February 2013. She was incarcerated again by May or June 2013.
The Division's caseworker visited the children at their resource home at least once a month. Each time she found them happy and comfortable. S.R.M.'s counselor, Ira L. Bilofsky, described S.R.M. as "bright and articulate." He expressed concern about continued visitation stating the child may be re-traumatized by seeing E.D.M., Sr.
A bonding evaluation between the children and defendant did not occur. Defendant's initial December 2012 evaluation had to be rescheduled because defendant was incarcerated. However, when defendant was released and informed of the rescheduled date, she did not appear.
James Loving, Psy.D., conducted a bonding evaluation between the children and the resource parents, who were paternal cousins. The children interacted freely with the resource family and "were very clearly comfortable." Also living in the home was the children's older sibling, whom the family had adopted. Dr. Loving concluded the two children had developed a strong, positive, and healthy attachment to both of their caregivers and that removal from their home would place them at a high risk of enduring and serious harm. Based on his review of the records and noting he had not evaluated defendant's interaction with the children, Dr. Loving believed defendant was important to the children and severing their contact with her would represent a loss to them. He believed, however, the resource parents were prepared for and would effectively mitigate that loss and provide the children with stability and nurturance, along with necessary professional services.
Defendant did not attend the two-day guardianship trial, which commenced on April 29 and concluded on May 2, 2013. Defense counsel requested an adjournment after learning an active fugitive warrant was issued for defendant's arrest. Judge Porto denied the application in light of the children's needs. The Division presented the testimony of its caseworker and Dr. Loving, which the judge found credible. Additionally, numerous documents were introduced into evidence.
On June 10, 2013, Judge Porto issued an oral opinion. Defendant appeared via a teleconference, as she was detained in the county jail. The judge concluded the Division's evidence clearly and convincingly established each prong of the statutory best-interests-of-the-child test. He ordered defendant's parental rights terminated and granted the Division's request for guardianship to effectuate their adoption by their resource family. The judge denied defendant's request for continued visitation pending her appeal. He entered the judgment on June 10, 2013, and filed an amended judgment on June 13, 2013 to correct a clerical error. Defendant's appeal ensued.
On appeal, defendant argues the trial judge erred in finding the Division's evidence met the statutory test supporting termination of her parental rights. She emphasizes her contention of the Division's lack of focus on appropriate services to aid her as a battered woman.
We fully recognize parents have a constitutionally protected right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating parents have a fundamental liberty interest in raising their children). Both the federal and the New Jersey constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
"[T]he right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. As evidenced by child abuse and neglect cases, some parents may act against the interests of their children. 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 the child 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. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent[s] ha[ve] not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.
The Legislature has 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). While recognizing the fundamental nature of parental rights, and the need to preserve and strengthen family life, "'[t]he 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) ).
"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 604-11, is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State establish each of the following standards 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;The four criteria are not discreet and separate, but overlap to provide a comprehensive standard to identify a child's best interests. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). The statute's four parts "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid. Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506.
(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.
The scope of this court's review of a determination terminating a parent's rights is limited. The factual findings which undergird such a judgment "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); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). The judgment of a trial judge "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).
Guided by these legal standards, we turn to defendant's challenges to the evidence presented by the Division. Defendant argues: (1) the Division did not prove she harmed her children and mistakenly assumed a finding of abuse or neglect was made in a preceding Title Nine action; (2) the judge's finding defendant harmed her children by using benzodiazepines or because she abandoned them is unsupported; (3) the evidence failed to prove defendant was unable or unwilling to care for her children or that she unreasonably delayed securing housing and employment; (4) the Division did not tailor the services to defendant's needs aimed at reunification, did not afford "appropriate visitation," and unreasonably required her to engage services with her abuser, E.D.M., Sr.; and (5) termination would not do more harm than good. Defendant also argues she was denied the effective assistance of counsel.
The first two prongs of the best interests test address the harm caused to the children and the defendant's failure to mitigate that harm. We address defendant's arguments attacking the Division's proofs on these two prongs.
The focus of the first prong examines the impact of harm caused by the parent-child relationship on the child's health over time. P.P., supra, 180 N.J. at 506. The harm facing the child "need not be physical" as "[s]erious and lasting emotional or psychological harm to [the] child as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, a "parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting . . . ." Ibid.
Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. See also J.C., supra, 129 N.J. at 26 (noting children have "an essential and overriding interest in stability and permanency"). This requires the "best interests" test be "viewed in light of amendments to N.J.S.A. 30:4C-15, which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. §§ 301, 671[(a)](16), 675(5)(A)(ii)." 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). These amendments clarify "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). To this end, "the attention and concern of a caring family is 'the most precious of all resources,'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613).
The concerns initially requiring the Division's assistance with this family in 2007 remained unchanged, and in fact increased by the time of trial in 2013. E.D.M., Sr., who suffered from mood swings, uncontrolled anger, violence, and substance abuse, never sought treatment. Yet defendant minimized the serious concerns posed by these conditions to her and the children's safety. She continued her relationship with him, and insisted they co-parent the children.
It was discovered defendant was abusing prescription medication after the children's removal. Her argument that this should not have been considered when assessing harm because it was discovered after removal, is specious. Defendant's urine tested positive for marijuana while she was pregnant with S.R.M. She declined to complete treatment even though informed her continued use affected her ability to care for the children. Thereafter, instead of abating her drug dependence through rehabilitation, defendant actually increased her illicit drug use. When she was arrested by the State Police on May 20, 2012, she possessed amphetamines, oxycodone, and morphine.
Defendant's arguments on appeal demonstrate her refusal to recognize the harm presented by her drug use. For example, defendant maintains the Division's proofs were insufficient to show drug dependence, making her failure to complete substance abuse treatment irrelevant. The facts belie such claims. The record contained two positive test results, and several instances when defendant refused to participate in urine screens give rise to an adverse inference that those tests, if taken, would have been positive. We conclude defendant's inability to address her drug problem created an imminent risk of harm to the children that she was unwilling to resolve.
Defendant also pursued criminal activity, first shoplifting and later theft, rather than obtaining employment and housing. As a result of these choices, she became a fugitive, and stopped visiting her children. At trial, defendant had not seen the children for months; thereafter, she was incarcerated and no further visits occurred.
The trial judge examined these facts and concluded:
As a direct result of [defendant's] continued substance abuse, criminal activity, incarcerations, lack of participation in services, domestic violence concerns, and because the New Jersey Supreme Court has held that a parent's failure to provide day-to-day nurturing for her children for a prolonged period of time is a recognized harm under the first prong of the best interest analysis, this Court finds the Division has met its burden of proof by clear and convincing evidence that [S.R.M.'s] and [E.D.M., Jr.'s] safety, health, and development has been or will continue to be endanger[ed by] the parental relationship.These findings of harm highlight defendant's unfitness and inability to offer the children a safe and stable home and are supported by the uncontroverted evidence in the record. We determine the facts clearly and convincingly show defendant's choices and conduct caused harm to the children which remained unabated, satisfying the requirements of the first two statutory prongs. To the extent defendant advances arguments not specifically discussed, we conclude the assertions lacked sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E).
Defendant's assertions challenging the findings supporting the third prong are also rejected. This prong contemplates efforts focused "on reunification of the parent with the child" and the provision of individualized "assistance to the parent to correct and overcome those circumstances that necessitated placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. Contrary to defendant's contentions, we conclude the Division offered a myriad of services to effectuate reunification.
Division caseworkers testified defendant would often begin services and after a short time, miss appointments and stop attending. She was registered for several substance abuse evaluations and drug rehabilitation programs, but completed none; she was taken to shelters, hotels, and home rentals; she was furnished with housing security deposits and funds to satisfy the electric bills; she was given daycare services to allow her to secure employment; she was provided with transportation passes; she was evaluated by psychologists, and offered therapy and domestic violence counseling; she participated in Family Preservation Services, which was the only program she completed, and parenting classes; and she was provided therapeutic visitation arranged through Robin's Nest and supervised visitation provided through the Division.
The third prong also requires the court consider alternatives to termination of parental rights, N.J.S.A. 30:4C-15.1(a), such as placement with a relative caretaker, N.J.S.A. 30:4C-12.1(a), or establishment of a kinship legal guardianship, N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010). The Division considered but found no viable alternatives to termination of parental rights. Placement among maternal and paternal relatives and friends recommended by defendant were investigated and found unsatisfactory. Ultimately, the children were successfully placed with paternal cousins, who agreed to adoption.
Defendant also asserts the Division failed to recognize she was a battered woman and did not provided services that would help her achieve independence from E.D.M., Sr. She also objects to recommended couples counseling, which the Division offered.
Defendant is incorrect when she maintains her status as a domestic violence victim went unrecognized. Her caseworker testified she had private conversations with defendant regarding a desire to separate from E.D.M., Sr. The caseworker informed defendant it was her choice to pursue services individually and encouraged her to work with CARA to locate appropriate independent housing. However, defendant left the shelter after a few days, stating it was not for her. Her claims now that she was forced to leave the shelter are unsupported by the record. Also, throughout the proceeding, defendant strongly denied E.D.M., Sr. was abusive; she expressed a desire to reunite with him and consistently stated the two would co-parent the children. Upon changing her objective to separate from E.D.M., Sr., the Division was fully supportive. However, defendant failed to follow through with CARA counseling services; obtain a residence; or attend individual social therapy, psychological assessments, substance abuse evaluations, or treatment. Robin's Nest also arranged for her separate therapeutic visitation sessions with the children, and her caseworker gave defendant information describing social services and shelters in New Jersey and Pennsylvania.
Although given alternative options, defendant remained with E.D.M., Sr. even after the children were removed. While we recognize the effect domestic violence can have on victims, there is no evidence here to suggest defendant's choices were not volitional or the Division ignored her individual needs. She continued to abuse illicitly obtained prescription drugs and engaged in criminal activity. She was arrested in October 2012 while conspiring with E.D.M., Sr. to defraud homeowners seeking tree services. We determine no basis to interfere with Judge Porto's findings and conclusions on this prong.
The fourth prong assesses 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). It "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 question to be addressed 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." K.H.O., supra, 161 N.J. at 355. Evidence in the record supports the Division proved by clear and convincing evidence the children's best interests were served by terminating defendant's parental rights.
Here, Judge Porto found
[t]he evidence clearly and convincingly . . . shows that [defendant] is in no better position than when the children were removed by the Division from her care. [S.R.M.] and [E.D.M., Jr.] are in a pre-adoptive home and have formed strong, healthy attachments with their foster parents. As noted by Dr. Loving's credible, persuasive, and unrefuted opinion, [S.R.M.] and [E.D.M., Jr.] both experience strong, positive, and healthy attachments to [their resource parents]. Dr. Loving . . . stated it's clear that the children both view these caregivers as central and important figures and that the children are at a very high risk of suffering severe and enduring emotional harm if they were removed from the [resource family] and returned to [defendant].
Defendant's emphasis that the prong was not satisfied because a comparative bonding evaluation was never conducted is flawed. Not only had she stopped visiting the children and ended communication with the Division, she also did not attend the bonding evaluation and skipped the trial. Even in light of defendant's lack of cooperation and failure to engage services to allow her to resume the role of the children's caregiver, Dr. Loving acknowledged the children's recognition of her as their mother and candidly spoke of the loss the children would experience by severing ties with her. He also related the enduring harm the children would suffer in the event of a failed reunification and the ability of their resource parents to give them comfort and support as they work through their loss. It would be fundamentally unfair to the children to deny them permanency simply because their mother refused to participate in a bonding evaluation.
We conclude Judge Porto properly evaluated the evidence and balanced the harm from terminating ties with defendant against severing the relationship with the resource parents. See ibid. This prong was clearly and convincingly established by the record evidence.
Defendant's final claim suggests she received ineffective assistance of counsel, who she maintains improperly advised her E.D.M., Sr. could return to the residence, which resulted in removal of the children. Although counsel's advice may have been erroneous on this single issue, defendant cannot show the results of the matter would have been altered, but for counsel's error.
A parent defending the State's action to terminate parental rights has a constitutional and a statutory right to effective assistance of counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007) (citing Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006); N.J.S.A. 30:4C-15.4(a)). Allegations of ineffective assistance of counsel in a guardianship proceeding must meet the standard set forth 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. Specifically, to succeed, a defendant must show counsel's performance was objectively deficient, and there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 609-10 (App. Div. 2011).
The evidence here arguably satisfies the first prong of the Strickland test, as counsel admits defendant was misadvised regarding the requirements of the May 4, 2011 order prior to E.D.M., Sr.'s return to the household. However, the facts as detailed above unequivocally demonstrate the outcome of this matter resulted not from counsel's error, but from defendant's conduct during the two years following the children's removal. See Hinton v. Alabama, ___ U.S. ___, ___, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1, 10 (2014) (holding in order for an attorney's mistake of law to amount to ineffective assistance, the error must have altered the outcome of the trial).
Defendant chose not to complete required services, secure stable housing, or engage employment. She lived a transient lifestyle, continued drug use, stopped seeing the children, and participated in criminal activities landing her in jail on at least two occasions. Defendant was incapable of providing the children with a safe and stable home, and there was little prospect that she would rectify these circumstances thereby adversely impacting the children's safety in the foreseeable future.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION