DCPP VS. M.S. AND J.H., IN THE MATTER OF THE GUARDIANSHIP OF J.M.H. (FG-11-0015-18, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 13, 2019
• Docket: A-5292-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5292-17T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant,

and

J.H.,

Defendant. ______________________________

IN THE MATTER OF THE GUARDIANSHIP OF J.M.H.,

a Minor. ______________________________

Argued January 15, 2019 – Decided February 13, 2019

Before Judges Fisher, Suter and Firko. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0015-18.

Jennifer M. Kurtz, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Jennifer M. Kurtz, on the briefs).

Julie B. Colonna, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Julie B. Colonna, on the brief).

Linda V. Alexander, Designated Counsel, argued the cause for minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Linda V. Alexander, on the brief).

PER CURIAM

M.S. (Mona)1 appeals the Judgment of Guardianship that terminated her

parental rights under N.J.S.A. 30:4C-12. Mona contends the judgment lacked

sufficient evidence, concluded erroneously that termination would not do more

harm than good and was entered without considering reasonable alternative

caretakers. We reject these arguments and affirm.

I.

1 We use fictitious names to protect the confidentiality of the family members and children. R. 1:38-3(d)(12).

A-5292-17T3 2 Mona and J.H. (Joe) have one child, J.M.H. (Jane), who was born in March

2016. Mona has two older children, J.S. and I.S. Their father, R.W., is not a

party. Under a consent order in a separate case in the Family Division, the two

older children live with Mona's mother, J.S. (Jackie), who has residential

custody of them.

This appeal concerns Jane. In May 2016, the Mercer County Prosecutor's

Office contacted the Division of Child Protection and Permanency (Division),

reporting that shortly after Jane's birth, two nurses heard Mona screaming and

found Joe trying to strangle her in the hospital room.2 Mona denied this to the

Division's caseworker, insisting that hospital personnel saw Joe giving her a

massage. She refused to request a restraining order.

Jane was born prematurely at twenty-five weeks gestation with lung

congestion, seizures, and developmental delays. The hospital reported Jane

likely was born prematurely due to "placenta abruption." Mona said this was

"due to me and my baby daddy . . . fighting all the time."

Jane was in the hospital for three months after her birth. Mona's visitation

with her was not consistent. She did not complete training on the apnea machine

2 This was not the first referral to the Division about Mona, but the others in 2012, 2013 and earlier in 2016, all were closed either as unfounded or not established. A-5292-17T3 3 required for Jane's breathing. She did not purchase Jane's medication or an

appropriate crib, stroller or car seat. Mona did not come to the hospital when

Jane was discharged in June 2016.

The Division was granted custody, care and supervision of Jane. She was

placed in a nonrelative foster home immediately after her discharge from the

hospital where she still resides.

Mona was referred by the Division for a substance abuse evaluation, a

psychological evaluation, and domestic violence counseling. She enrolled

herself in a parenting program. She had weekly supervised visitation with Jane,

that she regularly attended through December 2016. She secured housing and

was employed. Her psychological evaluation showed she needed parental skills

training classes, domestic violence counseling, psychotherapy and counseling,

which she obtained at Children's Home Services (CHS).

In October 2016, Mona applied for and was granted a domestic violence

restraining order against Joe because he was scheduled to be released from jail.

However, she dismissed it in December 2016 to resume a relationship with him.

In March 2017, a caseworker also saw Joe use a key to enter Mona's apartment.

Shortly after, Mona called the police complaining that Joe choked her until she

A-5292-17T3 4 could not breathe. She showed visible injuries; the police arrested Joe but Mona

declined to apply for a restraining order.

Mona was no longer employed by this time. Her visits with Jane were

sporadic. Between August and October 2017, she attended only three visitations

with Jane. She did attend a program for domestic abuse, but returned to Joe

while attending it. She failed to comply with updated substance abuse

evaluations to monitor her for alcohol abuse. Mona stopped visitation with Jane

in October 2017 and did not see her again until April 2018. She was terminated

from the CHS program in December 2017 for non-compliance. She did not

remain in contact with the Division. The Division's complaint for guardianship

was filed in September 2017.

The Division explored options for placing Jane with maternal or paternal

relatives. Mona's sister, A.S. (Amy), contacted the Division two weeks after

Jane's birth, offering to care for the child.3 In August 2016, Mona told the

Division she wanted Amy to be assessed as a placement for Jane. A week later,

Mona changed her position after learning the Division was exploring a paternal

aunt, S.Y. (Sylvia), as a possible resource. Sylvia lived in New Jersey; Amy

3 The timing is uncertain because the prosecutor's referral of this matter to the Division was in May 2016, almost two months after Jane was born. A-5292-17T3 5 lived in North Carolina. The Division's records indicated placement with Amy

was raised again in November 2016, but Mona did not want Jane to go there.

This was during the period when reunification with Mona remained the goal. In

April 2017, Amy advised the Division that she "was not willing to move forward

with the [interstate] process."

Amy contacted the Division again in September 2017. She advised she

had not presented herself earlier as a resource because of the distance to North

Carolina. She told the Division she kept asking Mona and eventually Mona said

"yes" to her requests. The Division commenced the interstate evaluation process

through North Carolina at the end of September 2017. At one point in December

2017, Mona left a message for the Division worker, stating that she wanted to

surrender her parental rights to Amy. In January 2018, the Division followed

up with North Carolina and Amy about Jane's placement. When this case was

tried in June 2018, Amy was on her "last look" by North Carolina, meaning she

could be certified as a foster parent once she passed its evaluation.

The Division had contacted Mona's mother, Jackie, in June 2016. She did

not want to care for Jane. She already was residential custodian for Mona's two

other children. She became irate and abusive and hung up the phone on the

caseworker. In April 2017, Mona requested that her mother be considered for

A-5292-17T3 6 placement but the Division did not place Jane there because the Division's

records reported Jackie had a "substantiation history."

The Division also contacted Joe's mother but she was unable to care for

Jane. She suggested her daughter Sylvia but Joe had listed Sylvia's address as

his residence upon his release from jail. Mona told the Division she did not

want it to continue exploring Sylvia as an option for Jane's placement. Mona

wanted Jane to remain with the resource family until reunification because Jane

had a bond with them. Sylvia was later ruled out because she already had a

relative child in her care and was in the process of becoming a licensed resource

parent for that child. Jane's current resource parents remain committed to

adopting her.

The guardianship trial was conducted in June 2018. By then Jane had

resided with the resource family for two years. Dr. Janet Eig, Psy.D., testified

at trial that she performed psychological and bonding evaluations. She

diagnosed Mona with post-traumatic stress disorder due to trauma and a

borderline personality disorder given her "pattern of intense volatile

relationships, her engagement in self-harming behaviors [and] her mood

instability . . . ." She had an alcohol use disorder in early remission. Mona

suffered from anxiety, depression and had made suicide attempts.

A-5292-17T3 7 Dr. Eig testified Mona was not able to independently care for Jane. She

lacked the ability to nurture or provide for the child, there were "protection"

issues because of her volatile relationship with Joe, she did not provide good

guidance, had trouble managing her anger and had a history of involvement "in

intense and volatile relationships." Mona had not completed any therapy,

meaning she had not addressed her "anger problems, past trauma" nor things

that contributed to her "mental health problems." She also did not want to talk

to anyone about these issues. She could not keep a calm environment for the

child because of anger management problems. Her inconsistent visitation

affected Jane's ability to develop a relationship with her. Jane needed a lot of

"focus, concentration and the ability to manage stress," but Mona had a low

frustration tolerance. She was easily distracted.

Dr. Eig testified that Jane's attachment to Mona was "insecure and

detached." There was "not a significant psychological attachment or bond

between the two of them." However, Jane had a "very secure attachment with

the resource parents." Dr. Eig testified Jane would suffer significant harm if

separated from her resource parents; Mona was not capable of mitigating this

harm.

A-5292-17T3 8 Dr. Eig, who also evaluated Amy, testified that she might be able to

mitigate the harm to Jane if she were removed from her resource parents, but

Amy had not met Jane before the bonding evaluation. She would have to have

"regular . . . therapeutic visitation" for a relationship to develop, which would

be difficult because she lived in North Carolina. She stated it would be

"detrimental" to move Jane from her resource parents because of her "very

secure attached relationship" with them. Jane was "thriving" in the resource

home.

She testified Jane's safety, health, or development had not been

endangered "at this point" but that Jane's premature birth resulting from abuse

was harm her father had caused. Mona was unwilling to engage in treatment,

placing Jane at risk of harm.

Following a two-day trial that Mona did not attend, the trial court

terminated Mona's parental rights to Jane. The court found that Mona

demonstrated "poor insight and judgment" in protecting Jane from domestic

violence. Her conduct caused Jane to suffer harm and placed her at risk of harm.

Mona would not obtain a restraining order, did not have stable housing, nor did

she undergo training to care for Jane's conditions. She later obtained a

A-5292-17T3 9 restraining order but then dismissed it. Mona persisted in her relationship with

Joe despite domestic violence services.

Mona's visitation with Jane was inconsistent, particularly after March

2017. Mona was terminated from the parenting skills program. Dr. Eig testified

about Jane's insecure attachment to Mona and the harm to Jane if she were

removed from her resource parents to whom she was securely bonded. Mona

could not mitigate this harm. The court found that based on the parents' "failure

to remediate their serious domestic violence and mental health issues, comply

with required visitations, and successfully complete the majority of court -

ordered services," Jane's safety, health or development "has been or would

continue to be endangered by a parental relationship with [either parent]."

The court found Mona was unwilling or unable to eliminate these harms.

She did not address her "toxic relationship" with Joe. She defended him and

declined to maintain a protective order. Her visitations with Jane were

inconsistent and she was terminated from that program. She returned to her

relationship with Joe even after attending domestic violence counseling. The

judge found it unlikely that either parent was capable of providing the care and

supervision Jane needed. Mona was not capable of parenting Jane

A-5292-17T3 10 independently. The court concluded there was no reason to delay placement

because neither parent could provide a safe and stable home for Jane.

The court found the Division made reasonable efforts to provide services

and to consider other alternatives to termination. Her visitation was inconsistent

and was terminated. She sporadically attended the parenting program and was

terminated. She was inconsistent in attendance at the therapeutic treatment

program.

The court also found the Division evaluated several different potential

caregivers. Sylvia was ruled out because she had another "relative child in her

care and was still going through the process of becoming a licensed resource

caregiver." Also, Joe gave her address for his residence. The maternal

grandmother was ruled out because she had a prior history with the Division and

was not willing to be a caretaker. Mona went back and forth on placing the child

with her sister Amy because of the distance to North Carolina.

The court found that termination of Mona's parental rights to Jane would

not do more harm than good. Jane lacked a strong bond with Mona; she never

resided with her. For a bond to develop, Mona would have to attend therapeutic

visitation and re-engage services. However, Mona lacked the focus necessary

to parent Jane, at least without appropriate therapy. In contrast, Jane had a

A-5292-17T3 11 significant or positive bond with her resource parents and would suffer harm if

this bond were terminated. Mona could not mitigate the harm to Jane if this

bond were disrupted.

Amy had no bond with Jane. To mitigate any harm to Jane by removing

her from her resource parents, Amy would need weekly therapy, which would

be a long difficult process because she resided in North Carolina. The court

concluded that termination of parental rights was in Jane's best interest because

all four prongs of N.J.S.A. 30:4C-15.1(a) had been proven by clear and

convincing evidence.

Defendant argues on appeal that termination of her parental rights was in

error. She raises the following issues:

I. THE TRIAL COURT ERRED IN CONCLUDING THAT REASONABLE ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS WERE CONSIDERED AND PROPERLY RULED OUT BECAUSE DCPP FAILED TO TIMELY ASSESS AND PLACE THE CHILD WITH AVAILABLE RELATIVE CARETAKERS.

II. THE TRIAL COURT’S CONCLUSION THAT JANE'S SAFETY, HEALTH OR DEVELOPMENT WAS ENDANGERED WAS ERRONEOUS BECAUSE IT STEMMED FROM THE LEGALLY ERRONEOUS ASSUMPTION THAT J.H.'S PAST ASSAULTS ON M.S. DEMONSTRATED HARM TO JANE AND RELIED UPON FACTS FOR WHICH

A-5292-17T3 12 THE RECORD LACKED CLEAR AND CONVINCING EVIDENCE.

III. THE TRIAL COURT'S CONCLUSION THAT M.S. WAS UNABLE TO CARE FOR JANE WAS BASED UPON SPECULATION AND ISSUES THAT WERE NOT IDENTIFIED BY DCPP UNTIL A MERE TWO MONTHS BEFORE TRIAL, AND ITS CONCLUSION THAT JANE REQUIRED PERMANENCY WITH THE [FOSTER PARENTS] WAS A DIRECT PRODUCT OF DCPP’S BLATANT DISREGARD OF RELATIVE CARETAKERS.

IV. THE TRIAL COURT'S LEGAL CONCLUSION THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD WAS ERRONEOUS BECAUSE IT NEEDLESSLY DESTROYED THE CHILD'S FAMILIAL TIES WHEN RELATIVES WERE WILLING AND ABLE TO CARE FOR THE CHILD BUT ABJECTLY IGNORED BY DCPP.

II.

N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the

termination of parental rights in the "best interests of the child" if the following

standards are met:

(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.

A-5292-17T3 13 Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

A trial court's decision to terminate parental rights is subject to limited

appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605

(2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family

courts' special . . . expertise in family matters, appellate courts should accord

deference to family court factfinding."). The family court's decision to terminate

parental rights will not be disturbed "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).

Because we find that the trial court's findings are supported by adequate,

substantial and credible evidence in the record, we affirm for the reasons set

forth in the trial court's forty-eight page written decision. We add only these

brief comments.

A-5292-17T3 14 We are satisfied the trial court correctly determined that there was clear

and convincing evidence to support each prong of the best interest test. There

was harm to Jane. Mona visited inconsistently with Jane and then voluntary

withdrew from her life and any responsibilities for her care. She has never

provided any care for her special needs child. It is not rebutted that her bond

with Jane is insecure and not developed because of her lack of interaction with

Jane. There was nothing in the record to dispute that Mona lacks the ability or

inclination to overcome her limitations and become a responsible parent. She

did not engage in therapeutic visitation; she admitted she does not like to talk to

anyone and would not engage in meaningful therapy to address her

psychological problems. She does not dispute she was provided with adequate

services, but she showed no improvement. She continued her "toxic"

relationship with Joe. She did not complete parenting classes or therapy.

Defendant's contention the Division made "no effort" to place Jane with

one of the relatives under consideration is without merit. In N.J. Div. of Youth

& Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011), we said

that the Division should not "place a child with a foster parent interested in

adoption without considering, as required by N.J.S.A. 30:4C-12.1, whether a

capable relative is also available." We also said "there is no presumption in

A-5292-17T3 15 favor of placement with relatives . . . ." Ibid. "Rather, '[a] presumption of

custody only exists in favor of a natural parent as opposed to placement with

relatives or foster parents.'" N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J.

Super. 69, 82 (App. Div. 2013) (quoting N.J. Div. of Youth & Family Servs. v.

M.F., 357 N.J. Super. 515, 528 n.3 (App. Div. 2003)).

The Division explored other relatives where Jane might be placed. The

paternal aunt, Sylvia, was ruled out because she had a relative child in her care

and was still in the process of becoming licensed as a resource parent. The

maternal grandmother, Jackie, was already raising two other children and did

not want to raise Jane. Amy was out of state and had no relationship with Jane.

Mona went back and forth about placing Jane with Amy. While reunification

efforts were underway, the Division appropriately considered in -state options.

It commenced the interstate review thereafter. Even if a relationship could be

developed, there was no certainty that Amy could mitigate any harm caused by

disrupting the relationship with Jane's resource parents. In re Guardianship of

D.M.H., 161 N.J. 365, 379 (1999).

We are satisfied on this record that the trial judge appropriately applied

the best interests standards under N.J.S.A. 30:4C-15.1 in terminating Mona's

parental rights.

A-5292-17T3 16 Affirmed.

A-5292-17T3 17