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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4769-18T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
P.M.,
Defendant,
and
M.M.,
Defendant-Appellant. ________________________
IN THE MATTER OF THE GUARDIANSHIP OF K.M. and J.M.,
Minors. ________________________
Submitted March 16, 2020 – Decided May 5, 2020
Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-0028-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Louis W. Skinner, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Melissa Young, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Linda Vele Alexander, Designated Counsel, on the brief).
PER CURIAM
Defendant M.M. (Matthew 1) appeals from the Family Part's June 14, 2019
judgment terminating his parental rights to his sons K.M. (Karl), born December
2013, and J.M. (Jason), born March 2015. Before trial, the children's mother
and Matthew's ex-wife, P.M. (Patricia), entered an identified surrender of her
parental rights, provided that one or both the current resource parents adopt the
two boys.
1 In accord with Rule 1:38-3 and the for the reader's convenience, we use initials and pseudonyms for the parties. A-4769-18T1 2 Matthew challenges the court's findings on all four prongs of the best
interests standard. N.J.S.A. 30:4C-15.1(a). The Law Guardian for the two boys
joins the Division of Child Protection and Permanency (Division) in opposing
the appeal. Having reviewed the record in light of Matthew's arguments, we
conclude that the trial court correctly applied the governing legal principles, and
sufficient credible evidence supports its finding that the Division satisfied the
best interests standard. Therefore, we affirm.
I.
The Division presented its case through the testimony of a Division family
service specialist who had reviewed pertinent Division records, and a
psychological expert, Linda Jeffrey, Ph.D., who evaluated Matthew, and
performed bonding evaluations of the children with Matthew and the foster
parents. The court also admitted into evidence voluminous Division records,
subject to a limitation regarding embedded inadmissible hearsay.2 Matthew and
his sister testified in his defense. We discern the following from that evidence.
At the time of trial, the children had been in foster care for over three
years, interrupted by increasingly shorter periods of reunification with their
2 Although the defense objected to embedded hearsay in the documents, the defense raised no objection to hearsay offered by the Division's witnesses. A-4769-18T1 3 mother. Four times, the children were removed from their home, which was
disrupted by domestic violence. The first removal occurred in July 2015.
Matthew had not cared for the children since then. His visitation during their
removal was inconsistent, and there were lengthy periods when he did not see
the children, either because he had not complied with services, his whereabouts
were unknown, or he did not appear. He conceded at trial that he was not ready
to serve as a full-time parent and provide them permanency.
The Division first became involved with the family a year before the
removal. Twice in an eight-month period, Patricia alleged that Matthew
committed physical acts of domestic violence. She alleged he shoved her while
she was holding Karl. Patricia obtained a restraining order, but then dismissed
it. In a later incident, he allegedly punched, choked, and threatened to kill her.
Patricia declined to stay in a safe house; and both parents refused in-home
parenting services and counseling.
The first removal occurred after Patricia brought Karl to the hospital with
blisters on his legs. She told the physician that Matthew pulled her hair, and
forced her to have sex with him. Neither parent could identify an appropriate
person to assist in implementing a safety protection plan and supervising the
children's care.
A-4769-18T1 4 During the Division's involvement with the family, Patricia obtained, then
dropped six temporary restraining orders (TROs). She alleged Matthew forced
her to drop the orders. One time, he was arrested while waiting in her car at the
courthouse. Ultimately, she obtained a final restraining order against Matthew.
The family was offered numerous services, including domestic violence,
anger management, substance abuse treatment, family reunification, and
psychological and psychiatric evaluations. Matthew started a program for stress
and coping management but was discharged after three months for
nonattendance. He repeatedly tested positive for cocaine, and alcohol, as well.
Although he attended some substance abuse and psychological evaluations, he
did not complete treatment. He only completed a parenting and a batterer's
intervention program.
The initial removal lasted eleven months. Matthew was afforded weekly
visits for most of that time, except for a three-month period when his
whereabouts became unknown. The children were returned to Patricia, but not
Matthew, as the Division remained concerned about domestic violence in the
home. A couple days later, the Division received news that Matthew had
violated a TRO.
A-4769-18T1 5 In July 2016, the Division removed the children again, after Patricia had
informed the agency "she was feeling overwhelmed caring for her children and
the stressors of her husband." Patricia had reported she had bipolar disorder.
There was a warrant for Matthew's arrest for violating a TRO. The children
were placed with the same resource parents who cared for them previously.
After Patricia resumed psychiatric medication, the children were returned
to her, while the Division retained care and custody. Matthew was ordered to
cease contact with Patricia and the children. But he continued to reach out to
Patricia and even showed up outside her apartment and art class.
A babysitter's report that Patricia threatened to kill the children prompted
the third removal, in December 2016. Patricia could not demonstrate she was
taking her medication. Patricia was ordered to attend a psychological
evaluation. Again, the children were not placed with Matthew due to concerns
about domestic violence and substance abuse. Matthew was ordered to attend
psychiatric and substance abuse evaluations, and cease contact with Patricia and
the children.
The children, then three and a year-and-a-half, returned to the previous
resource parents for eighteen months. The court ordered that visitations between
A-4769-18T1 6 Matthew and the children could resume if he complied with the Division's
services, but he did not.
A psychiatric evaluation found that Matthew presented with "a
conglomerate of different psychiatric problems and different psychiatric
diagnoses intermingled and interwoven with each other, sitting on the
foundation of him having a number of maladaptive personality traits." The
evaluator recommended psychotherapeutic treatment, cognitive behavioral
therapy, parenting classes, a parental fitness evaluation, random drug screens,
and anger management. Matthew was twice terminated from substance abuse
programs. One lab result showed a faint level of cocaine. Another one showed
a diluted urine sample.
In June 2018, the children reunited with Patricia. Matthew was not
granted joint custody because of ongoing concerns about domestic violence. But
he was allowed weekly supervised visits with the children. He was also ordered
to attend batterer's counseling, intensive anger management, cognitive
behavioral therapy, and psychiatric and substance abuse evaluations.
Three months later, the Division removed the children for the last time,
and returned them to the resource family where they had previously resided.
Patricia had brought the children to Matthew's sister's house where they stayed
A-4769-18T1 7 overnight. Matthew also stayed at his sister's house. When Patricia returned to
retrieve the children, Matthew had the children and resisted Patricia taking them.
The Division removed the children because she allowed them to go where she
knew Matthew could visit.
After that removal, the Division again offered Matthew cognitive
behavioral therapy and anger management services, but he only attended one
appointment. He tested positive for cocaine, but refused to attend a
recommended residential treatment program. He was offered visitation services,
and psychological and bonding evaluations. Visits with the children were
permitted at the Division's offices through December 2018. Aside from his
failure to complete services, the Division noted that Matthew lacked an
appropriate home for the children. At the time of trial, Matthew lived with his
sister, who had previous involvement with the Division and was ruled out as a
possible placement. The Division ruled out other persons, including a former
wife of Matthew, who stated in 2015 that she was unwilling to care for the
children.
The Division's family specialist testified that the Division had continuing
concerns about Matthew's substance abuse, domestic violence, mental health,
and parenting ability. Since the children's initial removal, Matthew had never
A-4769-18T1 8 cared for them full-time. He only had supervised visitations with them. The
children were doing well with the resource parents, who wished to adopt them.
Based on the evaluations she performed in early 2019, Dr. Jeffrey testified
that Matthew demonstrated a lack of candor during testing, and his testing
indicated he was "faking good." He reported he had been incarcerated eight to
ten times, but could not recall his convictions. He said he last used drugs in the
1990s, yet admitted he tested positive for cocaine the previous January. He
denied committing acts of domestic violence, although there was a final
restraining order against him. He also disclosed that he was taking medication
for depression; he had bipolar disorder; and had experienced hallucinations. He
reported that he was jobless for eight years and received Supplemental Security
Income.
Dr. Jeffrey opined that Matthew had poor insight and judgment. He had
personality disorders with "narcissistic, borderline and antisocial personality
features." She said Matthew had unresolved mental health problems which
would interfere or likely decrease his parenting capacity. She opined that he
was "not prepared to provide a minimal level of safe parenting." She also cited
Matthew's inability to find employment and provide independent housing for the
children. Dr. Jeffrey concluded that placing the children in Matthew's care
A-4769-18T1 9 would risk harm to them. Dr. Jeffrey also testified that the multiple placements
were a "very negative thing" and the children were "lucky that they have had the
same conscientious resource parents."
Dr. Jeffrey opined the children displayed "insecure attachments" to
Matthew. Although Matthew was attentive and affectionate with the children,
and they displayed affectionate ties to him, "they were not using him as their
major sources of security . . . [or] parental authority." She noted that the children
were in and out of placement for years and learned to rely on other people for
care and security. Dr. Jeffrey did not recommend placing the children with
Matthew.
By contrast, Dr. Jeffrey opined that the children had a "secure attachment"
with their resource parents, and severing that attachment would be "a very
serious blow" to the children. Dr. Jeffrey recommended that the children remain
in the resource parents' care.
Matthew's sister testified that Matthew had been living with her since
2015. She alleged that Patricia often visited Matthew at her house with the
children. She testified that Patricia told her the restraining order was no longer
in effect. However, the day following one visit in April 2019, police arres ted
A-4769-18T1 10 Matthew was released by the time he testified at the guardianship trial.
He said he had been in jail for roughly seventy-seven days for violating the
restraining order. He admitted violating TROs five or six times. He said Patricia
often gave him hope that they could work things out. Matthew also admitted he
was convicted of domestic violence in 2017, and completed a batterer's program
after that.3 He denied any subsequent domestic violence, although Patricia
alleged it. He noted that he had three children with his first wife, with whom he
was together for thirteen years. He said she and he "had a foster care business
3 His admission apparently took his attorney by surprise. After a line of questioning evidently intended to establish that he violated TROs with Patricia's complicity, Matthew engaged in the following question and answer:
Q. Did you – were ever charged with or convicted of domestic violence?
A. Yes
Q. You were?
A. Yes.
Q. And when was that?
A. That was here in Bridgeton. I don't know exactly – exactly what day.
Q. Was it last year, the year before?
A. I believe it was in 2017, I believe. A-4769-18T1 11 together," and he was "qualified to be in the home with the kids if she wasn't
there."
Matthew testified that he last used drugs in March 2019. He said he was
unable to fully engage and complete treatment because of his recent
incarceration. He admitted he was discharged from a combined mental health
and substance abuse program because of non-attendance. He stated he had just
started a new intensive outpatient drug program the previous week.
He lamented that Patricia had a greater opportunity than he did to raise
the children, while conceding his own challenges.
I just felt that, you know, she was given the opportunity three different times and I never got a chance to have an opportunity to, you know, really bond with my kids . . . . I know my mental and substance and everything is a contributing factor and everything, and sometime, you know, you could fall down, but I try to get back up. And that's one of the reasons why I'm still here. I mean, I could have signed my rights away and all that stuff, but it will haunt me for the rest of my life that I didn't at least try.
He stated that his children should be returned to him "once I get all my
services and everything and I get myself on my feet." He asked that they be
placed with his aunt and uncle, although a background investigation was still
underway. He refused to concede that he would not be ready to parent for a
A-4769-18T1 12 couple years, but he admitted he needed more time as he had "a lot of stuff on
[his] plate," and his children were in a "good spot" where they were placed.
In an oral decision, the court terminated Matthew's parental rights. The
court found all the witnesses credible, noting Matthew's candor that he was not
presently prepared to parent the children.4 The court found that the Division
proved by clear and convincing evidence all four prongs of the best interests
standard. The court determined that Matthew's "significant psychological,
psychiatric challenges, [and] substance use challenges," as well as at least one
established incident of domestic violence, had endangered the children's health,
safety, and development.
Second, the court found that Matthew was unwilling and unable to provide
a stable home for the children within a reasonable period, because he was facing
"too many challenges," and delaying a permanent placement would add to the
harm to the children. The court noted Matthew's unsuccessful discharge from
treatment. His failure to obey TROs and his subsequent incarceration interfered
4 The court noted that, notwithstanding the reference at trial to numerous TROs, the Division failed to present certified judgments of conviction or other competent proof that Matthew committed the numerous acts of domestic violence alleged. The court noted only the undisputed fact that one FRO was entered. The court also misstated that there was no evidence that Matthew "has been found guilty of committing an act of domestic violence in the criminal sense," as he admitted he was convicted in 2017. A-4769-18T1 13 with his ability to complete services. The court highlighted Matthew 's
admission he had "a lot on [his] plate" given his substance abuse and mental
health issues. The court found that "separating the child[ren] from their resource
family would cause serious and enduring emotional or psychological harm."
Third, the court found that the Division provided reasonable services to
Matthew, noting: psychological and psychiatric "interventions," including
cognitive behavior therapy, and anger management or batterer's programs;
substance abuse services; and visitation and in-house parenting programs. The
court also found that the Division made an appropriate, albeit unsuccessful
effort, to place the children with an acceptable relative.
Finally, the court found that termination would not do more harm than
good. The court noted that the children have a secure, healthy attachment to
their resource parents, and severing that bond "would cause long-term, future,
significant risks" of harm. On the other hand, the children had only an "insecure
attachment" with their father; Matthew was "not in a position . . . to provide the
minimal level of safe parenting"; and delaying permanency would cause the
children "more harm than any other action at this point."
A-4769-18T1 14 II.
We exercise limited review of the trial court's decision. In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial court's
fact-finding because of its "special expertise" in family matters and its "superior
ability to gauge the credibility of the witnesses who testify before it[.]" N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). "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).
In reviewing the legal issues de novo, see Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995), we must determine whether the
trial court properly applied the best interests standard, which requires the
Division to prove the following four factors by clear and convincing evidence:
(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;
A-4769-18T1 15 (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.
[N.J.S.A. 30:4C-15.1(a).]
We discern no error.
As for the first and second prongs, which we consider together because
they are interrelated, see In re Guardianship of D.M.H., 161 N.J. 365, 378-79
(1999), Matthew contends that none of his undisputed conditions –
psychological disorders, substance abuse, domestic violence and violation of
restraining orders, periods of incarceration, and lack of housing – presented a
danger to his children's safety, health, or development. He contends that the
Division did not prove Matthew caused his sons "actual harm." He notes that
he acted appropriately when he visited his sons. He contends he was ready to
complete services; and his conceded unavailability to assume parenting was not
enough to satisfy the test.
We are unpersuaded. "Courts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect." Id. at 383. "Serious
and lasting emotional [and] psychological harm to children as [a] result of the
A-4769-18T1 16 action or inaction of their biological parents can constitute injury sufficient to
authorize the termination of parental rights." In re Guardianship of K.L.F., 129
N.J. 32, 44 (1992) (emphasis added). The absence of physical abuse or neglect
is not conclusive; the court must also consider the potential for serious
psychological damage. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 605 (1986); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super.
418, 440 (App. Div. 2001); In re Guardianship of R., G. and F., 155 N.J. Super.
186, 194 (App. Div. 1977).
"A parent's withdrawal of that solicitude, nurture, and care for an extended
period of time is in itself a harm that endangers the health and development of
the child." D.M.H., 161 N.J. at 379. Untreated mental illness that threatens
harm to a child may disqualify a parent from raising the child. F.M., 211 N.J.
at 450-51. So may "[t]he lack of a permanent, safe, and stable home." D.M.H.,
161 N.J. at 383.
Matthew minimizes the impact of his failure, during the over-three-year
period in which the children were placed with their resource parents, to complete
programs and demonstrate the capability to parent. "[T]he second prong may
be met by indications of parental dereliction and irresponsibility, such as the
parent's continued or recurrent drug abuse, the inability to provide a stable and
A-4769-18T1 17 protective home, [and] the withholding of parental attention and care." In re
Guardianship of K.H.O., 161 N.J. 337, 353 (1999).
We recognize that a court may not terminate a parent's rights simply
because the parent was incarcerated, see N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 556 (2014), or because the parent is impoverished, see A.W.,
103 N.J. at 605. However, the trial court did nothing of the sort. The court
properly considered the impact of defendant's incarceration – along with all
other considerations – on his ability to complete services and to assume his
parenting role. In re Adoption of Children by L.A.S., 134 N.J. 127, 143-44
(1993).
The court also gave considerable weight to Matthew's inability to parent
for an extended period of time, and the consequent delay in permanency, as a
result of which, "separating the child[ren] from [their] resource family parents
would cause serious and enduring emotional or psychological harm to the
child[ren]." N.J.S.A. 30:4C-15.1(a)(2). Matthew's professed readiness to
complete recommended services, however well-intentioned, does not vitiate the
court's finding regarding prongs one and two.
Turning to prong three, Matthew's contention the Division failed to make
reasonable efforts to provide him services, so he could overcome the
A-4769-18T1 18 impediments to his assuming a full-time parenting role, lack sufficient merit to
warrant extended discussion. R. 2:11-3(e)(1)(E). "The diligence of [the
Division's] efforts on behalf of a parent is not measured by their success,"
D.M.H., 161 N.J. at 393, particularly where the lack of success results from a
parent's "failure to cooperate or follow through," N.J. Div. of Youth & Family
Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004).
Finally, Matthew has not demonstrated the court erred in finding that
"[t]ermination of parental rights will not do more harm than good." N.J.S.A.
30:4C-15.1(a)(4). The court appropriately relied on Dr. Jeffrey's expert opinion
regarding the nature of the relationship between the children and Matthew, and
the children and their resource parents. See K.H.O., 161 N.J. at 355.
The court credited Matthew's resolve to address his personal challenges.
The court acknowledged Matthew's genuine affection for his children, and his
refusal to surrender his rights. Yet, the court also appropriately weighed the
children's need for permanency, evidently aware "that placement plans must not
lose sight of time from the perspective of the child's needs." Id. at 357. For the
children, who spent most of their young lives with their resource parents,
severing that secure relationship would cause great harm. It was too late to wait
for the uncertain date when Matthew might be prepared to assume his role as a
A-4769-18T1 19 parent. In short, "time [has] run[] out for these children." Ibid. (quoting A.W.,
103 N.J. at 615).
Affirmed.
A-4769-18T1 20