NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,Plaintiff–Respondent, v. S.D.B., Defendant–Appellant. IN RE: THE GUARDIANSHIP OF T.D.B., a minor.
DOCKET NO. A–5330–11T2
-- August 09, 2013
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Rita Gesualdo, Deputy Attorney General, on the brief).Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, T.D.B. (Christopher A. Huling, Designated Counsel, on the brief).
Defendant S.D.B. (Sandy) appeals from the termination of her parental rights to her then two-year-old daughter, T.D.B. (Tanya).2 We affirm.
A one-day trial was held on April 24, 2012. Following the trial, the Honorable Ronald D. Wigler, J.S.C., entered an order terminating Sandy's parental rights and awarding guardianship of the child to the Division of Youth and Family Services (Division). In a comprehensive written decision setting forth credibility determinations, evidentiary rulings, findings of fact, and conclusions of law, Judge Wigler found that the Division satisfied all four prongs of the statutory “best interests” test, N.J.S.A. 30:4C–15.1(a).
The following facts were adduced from the trial record. Sandy was sixteen years old and in the custody and care of the Division when she gave birth to Tanya in July 2010. Tanya's father, H.W., could not be located and was not a part of the litigation. Upon their release from the hospital, Sandy and baby Tanya were placed together in a Division-approved resource home. The Division arranged services for Sandy, including parenting skills at the New Life program, individual therapy with the Family Connections Adolescent Crisis Intervention Program (ACIP), tutoring, mentoring, and life skills at Independent High.
The Division scheduled Sandy for a psychological evaluation with Briana Cox, Psy.D., on August 17, 2010. During the evaluation, Sandy admitted that she resided with Tanya in a resource home, but she did not get along with her resource mother. She admitted that she had never been employed before and had only completed school up to the tenth grade. Dr. Cox asked Sandy about the physical and emotional needs of a newborn, as well as how she would discipline a child. Sandy responded that the appropriate form of discipline for a two-year-old is “a pop.” Dr. Cox asked what Sandy would do if disciplining Tanya in that manner did not work and Sandy responded, “I don't know.”
Sandy also submitted to cognitive and personality testing during her evaluation with Dr. Cox. Sandy's overall score on the KBIT–2 cognitive assessment was in the first percentile, but Dr. Cox acknowledged that the test might not represent her true abilities. Sandy scored “very high” on a scale that measured social insensitivity. She scored “high” on scales that measured delinquent predisposition, inhibition, depressive affect, childhood abuse, forceful behavior, peer insecurity, introversion, and doleful personality traits.
Dr. Cox concluded that Sandy lacked the financial resources to care for a child independently, as she was unemployed, still in high school, and dependent on others to take care of her. She also concluded that Sandy did not have sufficient emotional resources to care for a child, and was socially insensitive and prone to delinquent behaviors. Dr. Cox opined that with support, Sandy might be able to develop the skills she needed to care for her child independently in the future. However, the prognosis for her ability to parent was guarded, as Sandy would need a high level of services in order to prepare her to parent independently.
Dr. Cox recommended that Sandy and Tanya be placed in a highly structured “Mommy and Me” program that could address Sandy's emotional problems therapeutically, as well as Tanya's physical and emotional needs. She also recommended that Sandy participate in psychotherapy and receive parenting training.
On August 29, 2010, the Division received a referral from Sandy's resource mother requesting that Sandy be removed from her home. The resource mother indicated that Sandy was threatening that her family was going to “jump her.” She also indicted that Sandy had previously run away from the home and was being taken to the hospital for psychiatric screening.
The following day, on August 30, 2010, the Division placed Sandy at the Emergency Diagnostic Reception Unit at YCS Grace Hall (YCS), a thirty-day program designed for children in crisis due to serious behavioral/emotional issues. On the same day, the caseworker placed Tanya in a Division-approved resource home. The caseworker arranged for Sandy to visit Tanya on a weekly basis at the Division office.
On August 31, 2010, Sandy submitted to a psychiatric evaluation at YCS. The clinician recommended that Sandy participate in the academic, therapeutic, and recreational components of the YCS program, as well as attend individual therapy, group therapy, supervised visits with Tanya, and parenting education.
Following her discharge from YCS on October 12, 2010, the Division placed Sandy in another Division-approved resource home. Sandy was advised that in order to remain in the home, she had to come directly home after school and abide by a 10:00 p.m. weekend curfew. She was attending Shabazz High School and continued receiving individual counseling with ACIP until November 2010, when she “adamantly denied her need for services” to the therapist and the Division caseworker. Both tried to persuade Sandy to continue with therapy, but the services were terminated due to her non-participation.
The Division also referred Sandy to the Children's Home Society SAFE program. However, on October 25, 2010, Sandy could not be accepted to the program. They cited her history of conduct disorder and running away, as well as her inability to function in a family-type setting and her aggression, as the reasons why she was not suitable for the program.
On December 1, 2010, Sandy's resource parent notified the Division that Sandy had not returned home from school. The resource parent agreed to file a missing person's report with the Newark police department. Over one month later, on January 10, 2011, Sandy arrived at the Division's office and asked to be placed. When questioned regarding where she had been, Sandy reported that she was “in New York having fun.” Sandy was again placed in a Division-approved resource home where she remained until February 14, 2011, when she and Tanya were placed in the “Mommy and Me” program at The Apostles' House.
Sandy and Tanya remained at The Apostles' House together for less than one month. Sandy was discharged from the program on March 7, 2011, after a series of disruptive incidents were reported. Sandy's discharge summary stated that: “[Sandy's] behavior with staff has been defiant, combative, and verbally assaultive. Seven Incident Reports had been received between the dates of March 2nd and March 6th outlining the particular occurrences. [Sandy's] ability to properly parent [Tanya] was still being assessed.” The Apostles' House manager also noted that “there were concerns of [Sandy's] lack of patience with [Tanya] when the child became unsettled or agitated. Especially during the overnight hours ․ [Sandy] ․ would become frustrated and short [-]tempered.” Sandy also went missing on March 6, 2011, while Tanya was in the hospital for treatment of a cyst.
Sandy refused to tell the caseworker where she would be staying or who she would be staying with, but said that she would be in New York. At Sandy's request, Tanya was placed in a resource home with Sandy's nephews for two weeks. On March 24, 2011, Tanya was moved back to the foster home she was in previously from August 2010 until January 10, 2011, where she remains today.
On March 25, 2011, the Division caseworker received a call from a truancy officer advising that he had picked up Sandy on the corner of Broad and Market Streets in Newark. The officer transported Sandy to the Division's office. Sandy advised that she had been in New York, Atlantic City and Newark. She did not want to be placed by the Division because she had a party to attend later that day. Sandy further indicated that she was not going to school, but that she would be interested in a program such as Job Corps. The caseworker encouraged Sandy to cooperate with a new placement and the Division would make some inquiries about Job Corps. Sandy subsequently remained in missing status for almost two months, during which time she did not attend any visitations with Tanya.
Due to Sandy's missing status and lack of compliance with services, the court on May 19, 2011, approved the Division's plan of termination of parental rights followed by adoption. Sandy had not visited with Tanya since she went missing on March 6, 2011. On May 20, 2011, the Division located Sandy and placed her at the YMCA shelter. Sandy again informed the Division caseworker that she wanted Tanya to remain in foster placement.
Sandy repeatedly went missing and refused placement during the ensuing months. On June 7, 2011, Sandy contacted the Division worker requesting visitations with Tanya. The Division caseworker asked Sandy to come into the office to conference and complete a case plan before having a visit. However, she did not appear at the Division office as requested, and on June 13, 2011, the Division once again placed her in missing status after being informed that Sandy ran away from the YMCA shelter.
Two months later, on August 12, 2011, Sandy returned to the Division office and requested placement. The Division placed Sandy at the YMCA Yes Program, where she remained for only ten days before absconding again. The Division did not have any further contact with Sandy until September 12, 2011, when she notified the Division that she was staying with a family friend who was not a Division-approved resource home. She indicated that she did not want to be placed in a resource home, but she wanted to commence visitation with Tanya. She also agreed to re-engage in services, such as parenting skills, counseling, and supervised visitation.
On September 14, 2011, the Division filed an Order to Show Cause and Complaint for Guardianship. Although Sandy did not appear in court for the hearing, she had been served with the Order to Show Cause and Complaint. On October 5, 2011, Sandy appeared in court with counsel for a case management conference. On the same date, the Division provided Sandy with a visitation schedule and notified her of her upcoming psychological evaluation appointment. Sandy did not attend any of her scheduled visitations until November 1, 2011, and thereafter only attended two visitations on December 20, 2011, and January 10, 2012.
On October 28, 2011, the Division received a referral that Sandy was at the hospital for treatment of an abscess. The Division responded to the hospital and Sandy again refused Division placement and walked ahead with friends.
On November 15, 2011, the Division referred Sandy to parenting skills at the Wise Women's Center at Essex County College. The Wise Women's Center scheduled Sandy to begin an eight-week training program on January 17, 2012. However, after attending the intake and first class, Sandy failed to attend any of the remaining scheduled classes. The Division caseworker also provided Sandy with information regarding a job readiness program scheduled for November 17, 2011, and suggested that she attend the event. Sandy indicated that she was not interested in this job assistance program.
After Sandy attended court on January 18, 2012, the Division only had limited contact with her with occasional phone calls. On March 29, 2012, Mark Singer, Psy.D., conducted a bonding evaluation of Tanya and her resource mother.
At trial, the Division presented testimony from caseworkers Carlos Quinones (Quinones) and Josianne Vincent (Vincent), and Dr. Singer, and the defense presented S.S. Sandy did not appear for trial. Quinones testified about the numerous services provided by the Division, which included counseling, parenting skills, placements, psychological evaluations, and information on a job readiness event. Quinones also testified regarding the Division's consideration of placing the child with S.S., a family friend, who had custody of Sandy's younger brother. He informed the court that S.S. was not yet licensed as a resource parent as she had submitted the application to become a resource parent one week before the guardianship trial and her home was not adequate to accommodate an additional child.
The court heard the testimony of Dr. Singer who noted that Tanya referred to her resource mother as “mama,” and that her “smiling and laughter were spontaneous and plentiful.” Dr. Singer concluded that “[Tanya] has come to view [her resource parent] as being her central parental figure” and “should [Tanya's] relationship with her psychological parent be severed, the child would likely experience a reaction to losing, what appears to be, her only consistent parental figure.”
The defense presented S.S., who testified that she had informed the Division that she was interested in being a placement for Tanya but admitted that her interest began in October 2011 when Sandy told her that she wanted S.S. to take care of Tanya until she gets herself together. S.S. further testified that Sandy told her months later that “she messed up and would not be able to get custody back of [Tanya].”
The last witness was caseworker Vincent, who testified that she was also the caseworker for three of Sandy's siblings. Vincent knew S.S. from a prior case involving Sandy's terminally ill sister. In that instance, S.S. failed to complete the foster parent application for that child. In regards to Sandy's case, Vincent had one contact with S.S. in which S.S. informed her that there were no family resources available for Tanya.
The trial court issued its written opinion on May 4, 2012, and found that the Division had met its burden under N.J.S.A. 30:4C–15.1 by clear and convincing evidence. This appeal followed, in which Sandy raises the following points:
POINT I: THE TRIAL COURT'S TERMINATION OF [SANDY'S] PARENTAL RIGHTS WAS NOT SUPPORTED BY SUFFICIENT, CREDIBLE EVIDENCE.
A. The Trial Court Erred in Finding That [the Division] Had Demonstrated, by Clear and Convincing Evidence, That it Made Reasonable Efforts to Address the Problems That Led to Placement Because [the Division] Failed to Provide Services Geared Toward [Sandy's] Unique Circumstances as a Mother Who Herself is in Placement.
B. The Trial Court Erred in Finding that [the Division] Had Demonstrated, by Clear and Convincing Evidence, That it Considered Alternatives to Termination Because it Did Not Explore the Availability of S.S. as a Family Placement Who was Willing to Serve as a Kinship Legal Guardian.
C. The Division Did Not Prove That Terminating Parental Rights Would Do More Good Than Harm to the Child, Because its Own Expert Witness Testified That [Tanya] was Still Too Young to Solidify Attachments.
The law governing our analysis is well-known. While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, our Legislature has declared that “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). Our Supreme Court has established the following standard of review in parental termination cases:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family․ We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448–49 (2012) (citations omitted) (internal quotation marks omitted).]
Moreover, the Supreme Court “ha[s] consistently imposed strict standards for the termination of parental rights.” In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citations omitted). When seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C–15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following factors:
(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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These “four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.” F.M., supra, 211 N.J. at 448 (citations omitted) (internal quotation marks omitted).
“Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children.” K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
Applying these standards, we find that the contentions raised in the appeal have no merit. We affirm substantially for the sound reasons expressed by Judge Wigler in his comprehensive thirty-two page opinion. We add only the following comments.
We note at the outset that, while Sandy generally asserts that the Division failed to prove all four prongs of the “best interests” test, she focuses her argument in her brief on only the third and fourth prongs. For that reason, we will not address prongs one and two and determine that any objections to those findings have been waived.3
Given our careful review of the record, we conclude that the Division established by clear and convincing evidence that the Division made more than reasonable efforts to help Sandy address the issues that led to Tanya's removal, and that the court carefully considered alternatives to termination of Sandy's parental rights. We are also satisfied that termination of Sandy's parental rights will not do more harm than good.
A determination under prong three is two-fold. First, the Division must make “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 must have considered alternatives to termination of parental rights.” N.J.S.A. 30:4C–15.1(a)(3) (emphasis added). The Supreme Court has held that “ ‘[r]easonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation.” N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). The reasonableness of the Division's efforts is not measured by its success, but rather “against the standard of adequacy in light of all the circumstances of a given case.” In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). The sufficiency of the Division's efforts must be evaluated on a case-by-case basis. Id. at 391.
The record confirms that the Division offered and provided numerous services to Sandy, including parenting skills at the New Life program, individual therapy with ACIP, tutoring, life skills at Independent High, and mentoring. Despite the Division's efforts, Sandy demonstrated a pattern of unwillingness to comply with Division and court-ordered services. Furthermore, Sandy's visits with her daughter became increasingly sporadic as the litigation proceeded. The court properly found that the Division did not abandon efforts for Sandy, as the agency provided services beginning with prenatal care continuing throughout the litigation.
Second, the court must consider “alternatives to termination of parental rights.” N.J.S.A. 30:4C–15.1(a)(3). This involves placement with relatives. The Division has an “obligation to identify and assess relatives.” N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.Super. 568, 580 (App.Div.2011). Sandy claimed that the court failed to consider S.S. as a family placement who was willing to serve as a Kinship Legal Guardian. The trial judge, however, considered the competing testimony of the Division caseworker, Vincent, and S.S., and deemed Vincent more credible with regard to the involvement S.S. had with Tanya. The Division had duly considered S.S. for possible placement; however, she was already the resource home for Sandy's younger brother. Her home was not an appropriate size for another child, nor had S.S. completed the application process. Also considering Dr. Singer's unrebutted expert opinion that Tanya had developed a significant bond with her foster parent, the judge found that “there were no reasonable alternatives to consider” with respect to familial placement. We thus conclude that the court appropriately found that the Division proved prong three by clear and convincing evidence.
Sandy next argues that the Division failed to prove by clear and convincing evidence that termination of her parental rights will do more good than harm. The fourth prong of the termination standard requires the Division prove that the termination of parental rights will benefit the child more than it harms the child. N.J.S.A. 30:4C–15.1(a)(4). The Court has recognized that “not all children[ ] who are ‘freed’ from their legal relationship with their parents[ ] find the stable and permanent situation that is desired even though this is the implicit promise made by the [S]tate when it seeks to terminate the parent-child relationship.” N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986) (citation omitted). In other words, “child[ren] deeply need[ ] association with a nurturing adult,” and courts should “mak[e] provision for a more promising relationship in the child's future.” Id. at 610 (citations omitted).
Here, there is substantial, credible evidence to support the court's conclusion that terminating Sandy's parental rights will do more good than harm. The court rightly considered Dr. Singer's bonding evaluations and opinions establishing that Tanya was strongly bonded to her foster parent and that severing that bond would cause harm to the child. The court perceptively found that
[Tanya] would experience more trauma if she was separated from her foster mother ․ than from separating from her natural mother, [Sandy,] who has not been a part of her life for almost a year․ Separating the child from her foster parent would subject her to the instability and danger of her natural mother, and absentee father, and the loss of the many services provided by the foster family and[,] most importantly, disrupt any permanency in her life.
We conclude the court reasonably determined that termination of Sandy's parental rights would not do more harm than good.
In sum, our careful review of the record leads us to conclude that the Division established the elements necessary to support the judgment of guardianship and the termination of Sandy's parental rights by clear and convincing evidence.
2. FN2. In light of the sensitive issues involved, we refer to all parties by fictitious names. R. 1:38–3(d).
3. FN3. An issue not briefed is ordinarily waived. See Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assoc., 347 N.J.Super. 163, 176 (App.Div.2002).