NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff–Respondent, v. M.R. and P.C., Defendants–Appellants. IN RE: THE GUARDIANSHIP OF J.C.,
DOCKET NO. A–5498–11T4DOCKET NO. A–5518–11T4
-- October 18, 2013
Joseph E. Krakora, Public Defender, attorney for appellants M.R. and P.C. (Albert M. Afonso, Designated Counsel on the brief for M.R.; Charles H. Landesman, Designated Counsel on the brief for P.C.).John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief).Joseph E. Krakora, Law Guardian for minor J.C. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
When the State seeks to terminate parental rights, the Division of Youth and Family Services (the Division) 1 must prove by clear and convincing evidence each of the following:
(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.
See also In re Guardianship of K.H.O., 161 N.J. 337, 347–48 (1999). In these consolidated appeals, defendants, M.R. (Mary) and P.C. (Peter) appeal from the Family Part's order terminating their parental rights to their son, J.C. (James).2 Peter argues that the Division failed to prove each of the four statutory prongs, while Mary contends that the proofs failed with respect to prongs two, three and four.
The Division and the Law Guardian counter by arguing the proof was clear and convincing regarding all four statutory prongs as to both defendants. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
On August 5, 2009, the Division received a report that Peter was abusing drugs and living with Mary, who was pregnant.3 Mary's estimated due date was December 13. On December 1, DYFS opened a case after confirming with Mary's methadone clinic that she had tested positive for opiates, cocaine, benzodiazepine, and methadone in fall 2009.
A Division case worker met with Mary, who admitted that she missed her daily methadone dosage and took heroin on the purported advice of her counselor. Peter denied any knowledge of Mary's use of heroin and evidenced concern over the health of his unborn child. Peter claimed to be regularly attending AA/NA meetings and abstaining from alcohol and drugs, although he acknowledged use of prescription medications for pain.
On December 9, a nurse at Newton Memorial Hospital informed the Division that Mary had tested positive for cocaine and opiates. Mary stopped attending pre-natal appointments with her physician, claiming inappropriate conduct on the doctor's part. Peter failed to appear for his risk assessment, and he and Mary failed to attend another meeting scheduled by the Division. Peter told DYFS that various appointments were causing the couple “much stress.” Mary and Peter assured their case worker that they would submit to a urine screen, but they never did.
Mary gave birth to James on January 3, 2010. Mary tested positive for opiates and cocaine, and the child was having trouble breathing and showed withdrawal symptoms. Mary admitted that she used three bags of heroin on January 2, the day before giving birth, but Peter claimed he knew nothing about Mary's drug use that day. James was diagnosed with Neonatal Abstinence Withdrawal Syndrome and transferred to another hospital for further treatment. The record reveals that his health has generally improved, although he has demonstrated deficiencies and delays in speech.
Peter was eventually evaluated at the Center for Evaluation and Counseling. He acknowledged a history of domestic violence in a prior relationship and admitted having been charged with numerous crimes. Peter stated that he was currently using Vicodin that had been prescribed for back pain, and he admitted taking Valium before driving to the evaluation. Peter denied the drug affected his ability to drive. However, he also told the evaluator that he had been previously involved in seven or eight motor vehicle accidents. Peter acknowledged having been diagnosed with depression and anxiety, but admitted he was not receiving psychiatric care.
DYFS was granted care, custody and supervision of James in February 2010. The child was discharged from the hospital and placed with foster parents on February 17.
Peter had knee replacement surgery on February 22 and was released from the hospital to a rehabilitation center. During a supervised visit with his son in his room, the Division's worker noticed Peter had a large amount of cash. After nurses at the center found a package of heroin in his bed and notified police, Peter was arrested, and eighteen decks of heroin were found in his room. He ultimately pled guilty to a lesser charge of failing to turn over the drugs to police.
Mary continued to test positive in drug screens, and the Division's efforts to find substance abuse treatment for her were initially thwarted by her refusal to comply with program requirements. She began treatment at Sunrise House on June 2, 2010, but left within eight hours of intake. The Division was notified, and in turn, notified police. Mary was arrested and charged with possession and distribution of heroin.
Police brought her to Bon Secours Community Hospital because she was suffering from withdrawal. Mary reported using “up to [fifty] bags” of heroin and Xanax on a daily basis. On June 8, 2010, Mary discharged herself against medical advice. She regularly continued to test positive for drug use and was briefly incarcerated for charges regarding her drug activity. She was released from custody on December 2, 2010.
After the incident at the rehabilitation home, Peter was evaluated for substance abuse treatment. He tested positive in drug screens conducted in May, June and September. Peter was referred to outpatient counseling in August but attended only two of sixteen sessions.
On October 8, 2010, the judge entered an order suspending Mary's and Peter's visitation with James “until [both were] engaged in treatment.” In January 2011, the judge approved the Division's permanency plan to terminate parental rights, and DYFS filed its guardianship complaint in February.
Mary again tested positive for opiates in April. Peter was set to resume substance abuse treatment in April, but he reportedly fell and broke his ankle, requiring bed rest.
Mark Singer, Ed.D. conducted a psychological evaluation of Mary and Peter on April 19, 2011. Prior to completing her patient information form, Mary asked to speak with Dr. Singer privately. She asked if he could “give [her] medication[,]” claiming she had just been released from “rehab” and her doctor had “cut [her] off.” Dr. Singer explained that the evaluation did not contemplate prescribing medication; Mary went into the waiting area and asked another doctor for medication.
Mary told Dr. Singer that she was currently unemployed. She explained that Peter would not let her work because he preferred to take care of her himself. Mary believed she and Peter would be reunited with James, and they would raise the child together. She admitted using drugs the previous week, and claimed she was using six bags of heroin per day. She denied using any other drugs, despite positive drug screens that indicated the presence of other drugs. Dr. Singer concluded that Mary was evidencing signs of withdrawal during the interview.
Peter told Dr. Singer that he had been with Mary for more than two years and they planned to raise James together; if necessary, he would raise the child by himself with help from his family. Peter admitted having been arrested twenty-five times for “[d]rugs, domestic violence, stolen property, harassment.” He stated that he was last arrested three weeks ago for driving under the influence of Percocet while his son from another relationship was with him in the car. Peter told Dr. Singer that he had been on disability since 1991 and had difficulty with his back, neck and legs. Peter admitted using Percocet “under a doctor's care” for fifteen years.
Dr. Singer concluded:
While both adults have a desire to care for [James], the data clearly suggest that each individual has significant mental health issues which have likely persisted over time and render them to be non-viable parenting options․ Furthermore, collectively, the family system is clearly unhealthy for any child, as well as for both adults, and would likely create an environment where a child within this system would be exposed to an unacceptable risk of neglect.
Considering the totality of the data, including the length of time DYFS has been involved with this family and the services offered, the data suggest that, within a reasonable degree of psychological certainty, neither as an individual, either as an individual or collectively, are capable of parenting [James] currently and are not likely to become capable of parenting [James] in the foreseeable future. The data suggest that both individuals will continue to have difficulty creating stability, consistency, and safety in their own lives, never mind the life of a young child.
Dr. Singer also conducted a bonding evaluation of James and defendants. Both parents acted appropriately and were “physically and verbally active with” James. Noting how easily James transitioned back to being with the Division's personnel, Dr. Singer concluded that the child did not view Peter or Mary “as being consistent, permanent figures in his life.” “[C]onsidering the data, the child's age, and the limited contact he has had with his biological parents, [James] would not likely experience significant and enduring harm if his relationship with his parents was severed.” Dr. Singer opined that “the presence of another attachment may mitigate any harm [James] may experience should he never see his biological parents again,” and such harm would likely be temporary and not significant. Dr. Singer concluded that neither Peter nor Mary would be “a viable parenting option in the foreseeable future,” and that “[p]lacing any child into this family unit ․ would create an unacceptable risk of harm to that child.”
Mary was arrested on June 9 for violating probation and incarcerated for three months. Mary claimed that she intentionally ingested her friend's Percocet to “get dirty” and force her way into St. Clare's fourteen-day inpatient treatment program, which otherwise was not going to admit her. Upon her release in September, pursuant to a referral by Drug Court, Mary began in-patient substance abuse treatment at Straight and Narrow, and her supervised parenting time with James resumed in October.
In May 2011, Peter was arrested in Pennsylvania for distribution of heroin. Although not in custody, Peter attended only thirteen of twenty-eight outpatient substance abuse counseling sessions at Newton Mental Health between June and November of that year.
Dr. Singer conducted a follow-up evaluation of Mary on November 2, 2011. His report, dated January 6, 2012, notes that Peter had failed to appear for his evaluation in October and November 2011, and January 2012. As to Mary, Dr. Singer opined:
While [Mary] may sincerely love her son, the data suggest that ․ she currently lacks the resources needed to parent her son. Consider the length of time [James] has been out of her care, as well as [Mary's] ongoing behavior and test data, the date further suggest that ․ [Mary] is not likely to become a viable parenting option for [James] in the foreseeable future.
Dr. Singer conducted a bonding re-evaluation with James and his foster parents in October and also conducted a bonding re-evaluation with James and Mary in November. Dr. Singer opined that James “ha[d] come to view” his foster parents, who evidence a desire to adopt the child, “as being his central parental figures.” Dr. Singer noted James “appeared to be reluctant to engage with his mother.” Dr. Singer stated that “should [James's] relationship with his mother be severed, it is not anticipated that the child would experience a significant and enduring reaction.” However, “should [James] lose his relationship with his psychological parents, it is anticipated that the child would regress emotionally and behaviorally.”
In February 2012, Dr. Singer conducted another evaluation of Peter and another bonding evaluation of Peter and James. Peter acknowledged that as a result of his guilty plea to the charges emanating from his May 2011 arrest, he was going to be incarcerated on March 19, 2012 and would be “do[ing] [twenty] months.” Peter attributed his failure to appear at prior evaluation sessions to “health issues.” Dr. Singer opined:
[Peter] continues to lack the resources needed to parent any child at this time, either as an individual or with [Mary]. The data suggest that [Peter], due to his own behavior, will be physically unavailable to parent any child for [twenty] months and, even if he was not going to prison, the data suggest that he would continue to have difficulty creating stability in his life, never mind the life of his son.
Dr. Singer further opined that although James “has clearly developed a level of familiarity with [Peter,] ․ the data does not suggest that [James] has come to view his father as being a significant, consistent parental figure.” Dr. Singer believed that the relationship James had formed with his foster parents would mitigate any reaction he would have to “losing his relationship with [Peter].” Dr. Singer opined that James “would be best served by being able to achieve permanency through adoption by his foster parents.”
On March 5, 2012, a Division case worker spoke to Peter's mother, who advised that she could not serve as James's caregiver because she was eighty-two years old. Mary completed her treatment at Straight and Narrow on March 6 and entered Real House, a residential halfway house program for intensive outpatient treatment.
The guardianship trial took place over several days in March, April and May 2012. DYFS presented the testimony of its various case workers, as well as the expert testimony of Dr. Singer, whose opinions were consistent with those contained in the reports we referenced above.
During trial, it was revealed that Mary relapsed while living at Real House. It was reported that she had pawned a ring to buy heroin. The transcript of the proceedings indicates that an arrest warrant was issued, although it is unclear whether Mary was actually arrested. Peter remained incarcerated in Pennsylvania throughout the trial. Neither defendant testified or presented any witnesses on their behalf.
The judge entered his findings and conclusions orally on the record. Determining that the Division had proven the four-pronged best interests test set forth in N.J.S.A. 30:4C–15.1(a) by clear and convincing evidence, he entered the order terminating Mary's and Peter's parental rights to James.
We set forth some of the well-known principles that guide our review. “We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings.” N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). “We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a ‘feel of the case’ that can never be realized by a review of the cold record.” Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
We accord particular deference to the judge's factfinding because of “the family courts' special jurisdiction and expertise in family matters․” N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). “Only when the trial court's conclusions are so ‘clearly mistaken’ or ‘wide of the mark’ should an appellate court intervene and make its own findings to ensure that there is not a denial of justice.” E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
“[W]here the focus of the dispute is ․ alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded.” M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, “even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.” Ibid. (internal quotation marks and citations omitted).
“The focus of a termination-of-parental-rights hearing is the best interests of the child[,]” and the Division must “satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C–15.1(a).” N.J. Div. of Youth and Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The four prongs require a fact-sensitive analysis, and “are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children.” M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258 (App.Div.2005)) (internal quotation marks omitted).
Considering the prong one proofs as to Peter, the judge noted Peter's continuous use of some form of pain management medication throughout the entire time he had contact with the Division. The judge also observed that Peter “consistently g[ave] lip service” to his intention to comply with services, “while his actions belie[d] and ma[de] mockery of those expressed intentions.” The judge noted Peter's arrest for possession of heroin while in a rehabilitation facility, and his present inability to parent James because of his incarceration. Based on Peter's criminal record, the judge accepted Dr. Singer's opinion that Peter “would have trouble abiding societal boundaries and would not accept limits on his criminal behaviors.” “The type of criminal activities which checker [Peter's] adult life,” the judge asserted, “have involved assaultive behaviors, and drug distribution, and domestic violence.” The judge found that Peter's criminal “behaviors put a child at substantial risk.”
When considering the first prong, the court's focus is not “on a single or isolated harm or past harm,” but rather “on the effect of harms arising from the parent-child relationship over time on the child's health and development.” K.H.O., supra, 161 N.J. at 348.4 The Division “does not have to wait until a child is actually irreparably impaired․” F.M., supra, 211 N.J. at 449 (internal quotation marks and citations omitted).
In this case, the judge did not base his conclusions solely upon Peter's present confinement. Rather, he concluded that Peter's inability to curb his drug use and remain free of criminal activity demonstrated grave potential for harm to James. This conclusion was amply supported by the substantial evidence in the record, and we will not disturb it.
With respect to the prong two proofs, the judge found that Mary's inability to remain drug-free and her continuous involvement with the criminal justice system made it likely that James would continue to experience harm if reunited with his mother. The judge specifically noted Mary's relapse during trial, some six weeks after entering Real House. The judge found that, “when she's using, [Mary] is putting her habit first and foremost, way ahead of concerns regarding the health and welfare of [James].” The judge determined Mary was unable to provide her son with “a safe, secure, nurturing home, now or in the foreseeable future.”
Regarding Peter, the judge concluded it was unlikely he would “not resume a similar lifestyle after his current incarceration[,]” at which time James would be four years old. The judge noted Peter's inability to deal with his substance abuse issues.
The second prong “relates to parental unfitness,” which may be established by demonstrating that: (1) “the parent is ‘unwilling or unable to eliminate the harm’ ”; or (2) “the parent has failed to provide a ‘safe and stable home’ ” and “a ‘delay in permanent placement’ will further harm the child.” K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C–15.1(a)(2)). The inquiry is “whether that parent can raise the child without inflicting any further harm.” N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 87 (App.Div..2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). “Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance” when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 437 (App.Div.2009). We also have noted that the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v.C.S., 367 N.J.Super. 76, 111 (App.Div.2004) (“[T]he ․ statute[ ] reflect[s] reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child.”), certif. denied, 180 N.J. 456 (2004).
Although she clearly evidenced a desire to overcome her terrible addiction, Mary's repeated relapses, including during trial, demonstrated by clear and convincing evidence that she was either unwilling or unable to eliminate the harm it posed to James. The undisputed expert testimony demonstrated that it was unlikely Mary would be able to care for James and provide a stable home for him in the foreseeable future.
We have said that “it is by no means settled or obvious that incarceration is so inimical to the [parental] relationship as to justify its termination as a matter of law.” N.J. Div. of Youth & Fam. Servs. v. S.A., 382 N.J.Super. 525, 534 (App.Div.2006) (internal quotation marks and citation omitted). However, Peter's incarceration at the time of trial was a relevant factor for consideration because it was probative of his ability to properly care for James. See In re Adoption of Children by L.A.S., 134 N.J. 127, 136 (1993). Moreover, Peter's sporadic attendance at substance abuse counseling and his decision to intermittently comply with services demonstrated an inability to do what was necessary to ensure that James was not subject to future harm.
The Division's proofs as to prong two were clear and convincing as to both defendants.
With regard to the third prong, the judge cited the multitude of attempts by the Division to provide services to both Mary and Peter. He noted that the Division investigated alternative caregivers, but they were ruled out. The judge also noted that reunification was not a viable alternative, since Peter was incarcerated for a substantial period of time and it was unlikely that Mary could properly care for James in the foreseeable future.
The Division's obligation to provide services under the third prong “contemplates efforts that focus on reunification,” K.H.O., supra, 161 N.J. at 354, and “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.” M.M., supra, 189 N.J. at 281. A court must consider whether a parent actively participated in the reunification effort. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). We have said that reasonable efforts toward reunification may be “impeded by the difficulty and likely futility of providing services to a person in custody.” N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J.Super. 228, 242 (App.Div.2010) (internal quotation marks and citation omitted).
The reasonableness of the Division's efforts “is not measured by their success.” In re Guardianship of D.M.H., supra, 161 N.J. at 393. Ultimately, [t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that [the Division] met its statutory burden to try to reunify the children with the family. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 620 (App.Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007). Moreover, “[e]ven if the Division ha[s] been deficient in the services offered to” a parent, reversal of the termination order is not necessarily “warranted, because the best interests of the child controls.” Id. at 621.
In this case, the Division's efforts were substantial. Mary was unable to remain drug-free despite those efforts. Peter impeded the Division's efforts and, when he did attend substance abuse counseling, his compliance was sporadic. Both defendants continued to be unavailable to parent James, in part, because of their ongoing involvement with the criminal justice system, an issue that the Division cannot remediate through the provision of services. It is also apparent that the judge considered alternative placement resources. The Division met its burden under prong three.
Defendants both argue the Division did not prove that termination of their parental rights would not do more harm than good. Mary contends that Dr. Singer's evaluation was performed at a time shortly after the court allowed her to resume parenting time, and that explains why James did not show signs of attachment toward her. She also contends Dr. Singer's opinions were “stale,” and the judge should not have credited them. Peter claims that his bonding evaluation showed strong evidence of a secure attachment with James.
The judge found Dr. Singer's testimony to be credible and uncontroverted. He noted that James had no nurturing relationship with Peter, who, despite not having seen James for many months, made several phone calls on his cellphone during the bonding evaluation. The judge also credited Dr. Singer's opinion that James did not view Peter as a central parental figure and that terminating his parental rights would not cause severe enduring harm. Based on Dr. Singer's opinion, the judge reached a similar conclusion with respect to Mary. By contrast, the judge credited Dr. Singer's view that James' foster parents were central parenting figures and severing their relationship would cause a “severe negative reaction” that neither Mary nor Peter could mitigate.
The statute's fourth prong mandates a determination as to “whether a child's interest will best be served by completely terminating the child's relationship with that parent.” E.P., supra, 196 N.J. at 108. “The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship.” N.J. Div. of Youth & Family Svcs. v. H.R., 431 N.J.Super. 212, 226 (App.Div.2013) (citation omitted). The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. “[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong,” termination may be appropriate. Id. at 363. “[A]fter considering and balancing the two relationships,” the question becomes whether “the child will suffer a greater harm from the termination of ties with h[is] natural parents than from the permanent disruption of h[is] relationship with h [is] foster parents.” Id. at 355.
In this case, the judge was entitled to credit the testimony of Dr. Singer. Mary's argument that she was not permitted enough time to establish a nurturing relationship with James rests upon a faulty premise regarding the focus of the fourth prong. See H.R., supra, 431 N.J.Super. at 227–28 (rejecting the father's argument as to prong four because “the child's need for a permanent placement takes precedence over the father's struggle with sobriety[,]” and rejecting, in part, the mother's argument “that she should have been given more time to re-engage in therapy and to achieve reunification with her child” because she “continued to abuse drugs․”). Peter's friendly relationship with James does not negate the essential conclusion that Dr. Singer reached and the judge accepted.
Moreover, the judge credited Dr. Singer's unequivocal testimony that clearly and convincingly stated separating James from his resource parents would cause serious and enduring emotional harm. In short, the prong four proofs were sufficient.
1. FN1. Effective June 29, 2012, the Division of Youth and Family Services became the Division of Child Protection and Permanency. See Pub.L. (2012), c. 16 § 28.
2. FN2. We have fictionalized the names of the parties and their child.
3. FN3. At the time, the Division had an open case involving a child that Peter had fathered with another woman.
4. FN4. We note that in K.H.O., supra, 161 N.J. at 351, the Court concluded that the first prong of the best interests test was clearly and convincingly proven as to a mother whose child “was born drug-addicted and remained hospitalized for one month before she could be released into foster care.”