DCPP VS. L.H. AND C.H., IN THE MATTER OF THE GUARDIANSHIP OF K.L.H. AND S.G.H. (FG-07-0171-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 23, 2019
• Docket: A-1828-17T4
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1828-17T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

L.H.,

Defendant-Appellant,

and

C.H.,

Defendant. _____________________________

IN THE MATTER OF THE GUARDIANSHIP OF K.L.H. and S.G.H.,

Minors. ______________________________

Argued December 17, 2018 – Decided January 23, 2019

Before Judges Messano and Rose. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0171-17.

Clara S. Licata, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Clara S. Licata, on the briefs).

Joseph A. Becht, Jr., Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Joseph A. Becht, Jr., on the brief).

Danielle Ruiz, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith A. Pollock, Deputy Public Defender, of counsel; Danielle Ruiz, on the brief).

PER CURIAM

The Family Part's November 30, 2017 judgment of guardianship

terminated the parental rights of defendant L.H. to her daughters, K. L.H.

(Karen), born in 2001, and S.G.H. (Sara), born in 2005. 1 Defendant argues the

Division of Child Placement and Permanency (the Division) failed to prove all

four prongs of the statutory best-interests-of-the-child test by clear and

1 We use pseudonyms to maintain the confidentiality of the parties and the children.

A-1828-17T4 2 convincing evidence. See N.J.S.A. 30:4C-15.1(a). The Division and the

children's Law Guardian urge us to affirm the judgment. 2

I.

The Division became involved with the family in 2003, when a

substantiated finding of neglect was entered against Charles, and, later, in 2010,

when the Division substantiated an allegation of neglect against defendant. The

events leading up to termination, however, occurred in October 2014, when

Sara's school made a referral to the Division because she was absent thirteen out

of eighteen school days that month. The Division investigated but made no

finding and closed its file.

In February 2015, the school made another referral, claiming defendant

refused to cooperate with Sara's home instruction program. The Division's

investigation revealed defendant would not let the instructor enter her home, nor

would she permit the instructor to teach Sara at a nearby school or library. A

psychological evaluation of Sara concluded the child likely would not return to

school "in the near future" because of "severe, and enduring stressors in her

life," including defendant's behavior.

2 The judgment also terminated the parental rights of C.H. (Charles), defendant's husband and the children's father. He has not appealed. A-1828-17T4 3 In April, the school made another referral. Sara had not attended for

nearly two months, and Karen missed thirty-four days of school during the prior

four months. When interviewed, Karen stated that defendant made her stay

home because defendant did not want to be home alone. The Division

commenced a Title Nine protective services action on April 23, 2015. Defendant

and Charles retained custody of the children, but the court ordered them to

ensure Sara's and Karen's attendance at school, and to undergo psychological

evaluation. The doctor diagnosed defendant with a delusional disorder and

unspecified anxiety disorder. A psychiatric evaluation in May suggested

defendant suffered from an underlying mental illness consistent with a psychotic

disorder.

The Division effected an emergency removal on April 30, when it learned

that the children had not attended school as ordered by the court.

Contemporaneously, defendant and Charles were evicted from their apartment

and moved in with Charles' mother in her one-bedroom unit. The Division

anticipated reunification if defendant and Charles continued recommended

treatment for their diagnosed psychological conditions, including attendance at

counseling arranged by the Division.

A-1828-17T4 4 However, the Division's plan changed to termination in January 2017, a

decision driven by several intervening events. Defendant stopped attending

counseling and was terminated from the program in June 2016. Sara, who was

living with resource parents, was diagnosed with schizophrenia. In November

2016, defendant was hospitalized and treated for manifestations of

"schizophrenia . . . and other psychotic disorder."

In the months leading up to trial, defendant and Charles attended

psychological counseling together, but, in June 2017, their therapist

recommended termination based on the lack of any progress and the couple's

failure to address common problems in the home. In August, defendant suffered

a psychotic episode that incapacitated her and required further hospitalization.

The children's resource parent had difficulty caring for the girls, and in

August 2017, the Division removed them and placed them with new resource

parents. The judge interviewed Karen and Sara in chambers before trial. They

reported being "comfortable" living with those resource parents and "interested

in being adopted."

The guardianship trial commenced in October 2017, and the Division's

caseworker authenticated the voluminous agency records and testified about her

interactions with the family. The Division's expert, Dr. Mark Singer, who had

A-1828-17T4 5 conducted psychological evaluations of defendant and Charles, and bonding

evaluations between them and the children, and the children and their original

resource parent, also testified. Neither defendant nor Charles testified, and

neither called any witnesses.

On November 30, 2017, following an oral decision on the record and the

filing of a written decision as well, the judge entered the judgment of

guardianship. This appeal followed.

II.

"We will not disturb the . . . 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 accord even

greater deference "[b]ecause 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) (alteration in original) (quoting Cesare v. Cesare,

154 N.J. 394, 413 (1998)). "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., 196

N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,

A-1828-17T4 6 605 (2007)). However, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552-53

(2014) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995)).

"The focus of a termination-of-parental-rights hearing is the best interests

of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447

(2012) (citing N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110

(2011)). The four statutory prongs "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." N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 280 (emphasis in original) (quoting N.J. Div. of Youth & Family Servs.

v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

A.

Under prong one, the Division must prove by clear and convincing

evidence that "[t]he child's safety, health, or development has been or will

continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-

15.1(a)(1). Although the Division need not "wait 'until a child is actually

irreparably impaired by parental inattention or neglect[,]'" F.M., 211 N.J. at 449

A-1828-17T4 7 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383), it "must prove harm

that 'threatens the child's health and will likely have continuing deleterious

effects on the child.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1,

25 (2013) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)).

Defendant contends that the judge relied upon evidence from the Title

Nine proceeding, where the lesser preponderance-of-the-evidence standard

applied, and the prior administrative substantiation of neglect based upon

inadequate supervision of the children, to conclude the Division proved prong

one by clear and convincing evidence. See, e.g., R.D., 207 N.J. at 118-19

(holding that in general, Title Nine findings may not be given preclusive effect

in subsequent Title Thirty litigation). Defendant misconstrues the basis of the

judge's findings as to prong one.

The judge found the Division's witnesses to be credible. He set forth the

circumstances of the 2010 investigation that substantiated defendant for neglect,

and the 2015 removal, by citing to evidence in the Division's records. The

Division's caseworker testified regarding the removal and the investigation that

followed. We fundamentally disagree, therefore, with defendant's assertion that

whether she inadequately supervised her children or educationally neglected

them "was not litigated" in the guardianship trial.

A-1828-17T4 8 The judge cited the "unrefuted expert testimony" that defendant and

Charles placed the children at continued risk of harm because they failed to treat

their own mental health problems, were unable to respond to their daughters'

demands, and unable to address their housing issues. The judge referred to Dr.

Singer's testimony that Karen "adopted a somewhat parentified role" with

respect to defendant and Charles, and understood her parents "cannot care for

her." In short, the evidence found by the judge was sufficient to prove prong

one.

B.

Defendant presents a somewhat synergistic argument regarding the

insufficiency of the Division's evidence as to prongs two and three, which

required the Division to prove by clear and convincing evidence,

(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[.]

A-1828-17T4 9 [N.J.S.A. 30:4C-15.1(a)(2) and (3).]

The prong two "inquiry centers on whether the parent is able to remove the

danger facing the child," and may "also be satisfied if 'the child will suffer

substantially from a lack of . . . a permanent placement and from the disruption

of [the] bond with foster parents.'" F.M., 211 N.J. at 451 (alteration in original)

(quoting K.H.O., 161 N.J. at 352, 363).

"The emphasis [in prong three] is on the steps taken by [the Division]

toward the goal of reunification." Id. at 452 (citing K.H.O., 161 N.J. at 354).

"'Reasonable 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." M.M., 189 N.J. at 281 (citing N.J.S.A. 30:4C-15.1(c)). However,

"[e]xperience tells us that even [the Division's] best efforts may not be sufficient

to salvage a parental relationship." F.M., 211 N.J. at 452.

Defendant does not minimize the seriousness of her mental illness. The

judge found defendant and Charles both suffered from serious mental health

issues. The judge also noted that defendant "may suffer another psychotic

disorder compromising her ability to function in reality and placing her children

at risk." That finding is clearly supported by the evidence in the record.

A-1828-17T4 10 The judge also concluded defendant and Charles lacked insight into their

"children's unique mental health issues," making them unable to assist Karen

and Sara. In addition, the judge found defendant and Charles failed to address

their lack of adequate housing, noting that throughout the litigation, they

remained living in a one-bedroom apartment, clearly inadequate if the family

were reunited.

Based on Dr. Singer's testimony, the judge found that Karen and Sara

would suffer additional harm by the delay in permanent placement, even if their

current resource parents were unwilling to adopt them, because the children "are

aware that their parents cannot care for them." Lastly, the judge reviewed the

various services the Division provided after removal and concluded prong three

was proven by clear and convincing evidence.

Defendant argues the Division failed to prove she was unable to remediate

the harm, noting that because of her mental illness, defendant was "incapable of

understanding . . . her actions harmed or presented a risk of harm" to the

children, and the "cookie-cutter therapeutic services" offered by the Division

failed to address defendant's mental illness. As to the second portion of prong

two, defendant contends there was no evidence "that separating [Karen] and

A-1828-17T4 11 [Sara] from their foster parents would result in severe and enduring harm to

them."

We acknowledge "[m]ental illness, alone, does not disqualify a parent

from raising a child. But it is a different matter if a parent refuses to treat h[er]

mental illness, [or] the mental illness poses a real threat to a child . . . ." Id. at

450-51. We have repeatedly recognized that termination is appropriate when a

parent, neither "morally culpable [n]or blameworthy," is unable to parent

because of mental illness. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.

Super. 418, 439 (App. Div. 2001); see also In re Guardianship of R., G. and F.,

155 N.J. Super. 186, 194 (App. Div. 1977).

We also agree with the judge that even though the current resource family

was unwilling to adopt Karen and Sara, the "delay of permanent placement will

add to the harm" they already suffered. N.J.S.A. 30:4C-15.1(a)(2). As we see

it, contrary to defendant's assertion, this conclusion is not inconsistent with the

judge's finding, under prong four, that the children would not suffer enduring

harm if separated from the current resource family.

Finally, we acknowledge the exquisitely difficult task faced by the

Division in trying to tailor services, particularly in the field of mental health, to

a particular parent. The record demonstrates that the Division provided some

A-1828-17T4 12 counseling services to defendant without success. Whether the actual

counseling provided addressed defendant's specific mental illness is certainly

debatable. However, Dr. Singer opined that defendant would not be able to

parent her children in the reasonably foreseeable future, regardless of the

amount and nature of the services provided.

We have said that "[e]ven if the Division ha[s] been deficient in the

services offered[,]" reversal is not necessarily "warranted, because the best

interests of the child controls[]" the court's ultimate decision. N.J. Div. of Youth

& Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007). We

therefore reject defendant's challenge to the judge's determination regarding

prongs two and three.

C.

Under the fourth prong, the Division must prove "[t]ermination of parental

rights will not do more harm than good." 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." G.L., 191 N.J. at 609. "The question ultimately is not whether a biological

mother or father is a worthy parent, but whether a child's interest will best be

served by completely terminating the child's relationship with th[e] parent."

E.P., 196 N.J. at 108. Typically, "the [Division] should offer testimony of a

A-1828-17T4 13 well-qualified expert who has had full opportunity to make a comprehensive,

objective, and informed evaluation of the child's relationship with both the

natural parents and the foster parents." F.M., 211 N.J. at 453 (quoting M.M.,

189 N.J. at 281).

The judge relied upon Dr. Singer's opinion that neither defendant nor

Charles would be able to parent Karen and Sara in the foreseeable future. After

the girls were relocated to another resource home, Dr. Singer provided an update

of his earlier report and opined that termination was still preferable.

Defendant's essential argument is that Dr. Singer's testimony was

equivocal and insufficient to prove prong four. Originally, Dr. Singer concluded

the children had formed a significant bond with their first foster fami ly and

severing that bond would cause significant harm. He also noted termination of

defendant's parental relationship would negatively affect Karen and Sara.

However, because the children had only been with their new resource parents

for two months, Dr. Singer was unable to perform an updated bonding

evaluation, and the Division knew the resource parents did not wish to adopt the

children.

Certainly, "courts have recognized that terminating parental rights without

any compensating benefit, such as adoption, may do great harm to a child." E.P.,

A-1828-17T4 14 196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

591, 610-11 (1986)). However, the testimony of the Division's caseworker

expressed optimism that Karen and Sara would be adopted once defendant's

parental rights were terminated. In evaluating the fourth prong proofs, "an

important consideration is '[a] child's need for permanency.'" F.M., 211 N.J. at

453 (alteration in original) (quoting M.M., 189 N.J. at 281). "Keeping the child

in limbo, hoping for some long[-]term unification plan, would be a

misapplication of the law." A.G., 344 N.J. Super. at 438.

Here, the judge credited Dr. Singer's bottom-line conclusion, that

termination and interim placement with potential adoption would not do more

harm than good given the unlikely prospects that defendant would ever be

capable of effective parenting. The judge credited that opinion, and we find no

basis to disturb that conclusion.

Affirmed.

A-1828-17T4 15