DCPP VS. W.L. AND J.J.IN THE MATTER OF THE GUARDIANSHIP OF S.K.L.(FG-11-39-16, MERCER COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 21, 2017
• Docket: A-0587-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0587-16T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

W.L.,

Defendant-Appellant,

and

J.J.,

Defendant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF S.K.L., a minor. ____________________________________

Submitted May 23, 2017 – Decided June 21, 2017

Before Judges Fisher and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-39-16.

Joseph E. Krakora, Public Defender, attorney for appellant (Louis W. Skinner, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melvina D. Fennell, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

W.L. ("Mother") appeals the September 20, 2016 judgment

terminating her parental rights over her daughter S.K.L. In her

oral opinion, Judge Audrey Peyton Blackburn found the New Jersey

Division of Child Protection and Permanency ("Division") satisfied

the best-interests test under N.J.S.A. 30:4C-15.1(a). We affirm.1

I.

The trial court's oral decision found the following facts.

S.K.L. was born in June 2014. Mother has four other children,

born in 2004, 2007, 2011, and 2013. Mother was twice substantiated

for abuse or neglect regarding other children and lost custody of

her four other children.

The Division has been involved with Mother since October 2005

based on concerns regarding Mother's use of drugs and alcohol.

Moreover, Mother has made three suicide attempts and has previously

1 The trial court also terminated the parental rights of the biological father, J.J. (Father). The termination of his rights is not at issue in this appeal.

2 A-0587-16T4 been hospitalized for depression. The Division found Mother to

need treatment for alcohol abuse and a mental health evaluation.

In November 2013, Dr. Alan S. Gordon performed a psychological

evaluation of Mother. Dr. Gordon found she had a severe mental

disorder. His diagnoses included that she suffered from major

depression with psychotic features, post-traumatic stress

disorder, and general anxiety disorder. He recommended Mother

attend individual psychotherapy as well as parenting classes.

In June 2014, just three days after her birth, the Division

removed S.K.L. from Mother's care due to untreated mental health

concerns. The trial court granted the Division custody. A few

weeks after her birth, S.K.L. was placed with her current

caregiver, an unrelated resource parent.

After a psychological evaluation, Mother completed domestic

violence counseling and parenting classes as recommended.

Initially, Mother attended supervised visits with S.K.L. However,

in November 2014, after an incident with Father, Mother stopped

attending services and was terminated from several programs.

The trial court also ordered Mother to have individual

therapy, but she failed to do so. In December 2014, Mother was

sent for counseling at Greater Trenton Behavioral Health, but her

attendance was sporadic and she insisted she did not need therapy.

She was also sent to a psychiatrist for counseling and medication

3 A-0587-16T4 monitoring, but she never took her medication. Mother's visitation

with S.K.L. became inconsistent, and she was terminated by the

agency which supervised her visits. Visitation resumed under the

supervision of the Division, but Mother attended sporadically and

then stopped attending visitation and other services. When trial

commenced, she had not visited S.K.L. for about ten months.

Mother never completed any mental health services. Mother

admitted in her testimony that she had not completed services at

Greater Trenton Behavioral Health, as she did not believe she

needed its services.

Following the August 2016 trial, the trial court credited and

adopted the testimony of the Division's psychologist Dr. Brian

Scott Eig and caseworkers Yonely Rosa and Kimberly Noel. The

court terminated Mother's parental rights. Mother appeals.

II.

"Appellate review of a trial court's decision to terminate

parental rights is limited[.]" In re Guardianship of J.N.H., 172

N.J. 440, 472 (2002). Our task is to determine whether the

decision "is supported by '"substantial and credible evidence" on

the record.'" N.J. Div. of Youth & Family Servs. v. F.M., 211

N.J. 420, 448 (2012) (citation omitted). "We ordinarily defer to

the factual findings of the trial court because it has the

opportunity to make first-hand credibility judgments about the

4 A-0587-16T4 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." N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)

(citation omitted).

"Particular deference is afforded to family court fact-

finding because of the family courts' special jurisdiction and

expertise in family matters." N.J. Div. of Child Prot. &

Permanency v. N.C.M., 438 N.J. Super. 356, 367 (App. Div. 2014)

(citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)), certif.

denied, 222 N.J. 18 (2015). Thus, "[w]e will not overturn a family

court's factfindings unless they are so '"wide of the mark"' that

our intervention is necessary to correct an injustice." F.M.,

supra, 211 N.J. at 448 (citation omitted). We must hew to our

deferential standard of review.

III.

"A parent's right to enjoy a relationship with his or her

child is constitutionally protected." In re Guardianship of

K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is

tempered by the State's parens patriae responsibility to protect

the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).

Under Title Thirty, the Division must prove by clear and

convincing evidence that termination of parental rights is in the

5 A-0587-16T4 best interest of the child. N.J.S.A. 30:4C-15(c); F.M., supra,

211 N.J. at 447. The Division must show:

(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 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.

[N.J.S.A. 30:4C-15.1(a).]

A.

We first address whether the Division presented clear and

convincing evidence to satisfy prongs one and two of the best-

interests test. The first two prongs "relate to the finding of

harm arising out of the parental relationship." In re Guardianship

of DMH, 161 N.J. 365, 378 (1999). They "are related to one

another, and evidence that supports one informs and may support

6 A-0587-16T4 the other as part of the comprehensive basis for determining the

best interests of the child." Id. at 379.

The first prong "requires that the State demonstrate harm to

the child by the parent" in the form of "endangerment of the

child's health and development resulting from the parental

relationship." K.H.O., supra, 161 N.J. at 348. The second prong

requires the Division show "the harm is likely to continue because

the parent is unable or unwilling to overcome or remove the harm."

Ibid.

"Mental illness, alone, does not disqualify a parent from

raising a child. But it is a different matter if a parent refuses

to treat [her] mental illness, [and] the mental illness poses a

real threat to a child[.]" F.M., supra, 211 N.J. at 450-51.

Mother's mental illness, which she refused to treat, prevented her

from parenting S.K.L. since she was born in 2014. "A parent's

withdrawal of [parental] solicitude, nurture, and care for an

extended period of time is in itself a harm that endangers the

health and development of the child." DMH, supra, 161 N.J. at

379.

We have held that "suffering from mental disorders which

adversely affect [one's] ability to parent" can be sufficient

evidence to satisfy the first prong. N.J. Div. of Youth & Family

Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif.

7 A-0587-16T4 denied, 171 N.J. 44 (2002). Moreover, if the parents lack "the

mental status sufficient to eliminate the risk of future harm to

the child," that speaks to "whether the child's safety, health or

development will be endangered in the future and whether the

parents are or will be able to eliminate the harm" under the second

prong. Ibid.

Dr. Eig conducted a psychological and parenting fitness

evaluation of Mother. He testified that, despite her history of

mental health problems, Mother "did not believe she needed services

or treatment." He found Mother "showed some significant reality

testing difficulties, some difficulties with being able to think

clearly and accurately. She did not appear to see the world the

way most other people do." As a result, she tended to misperceive

herself and others and did "not make good judgments."

Given Mother's sixth-grade education and "below average level

of intellectual functioning," Dr. Eig found Mother "would struggle

with being able to understand the child's emotional and behavioral

needs" and "she would have difficulty problem-solving the more

complex and ambiguous situations that often arise during

childcare." He concluded Mother, "who is inflexible and has

longstanding difficulties, is not supported as a caregiver for a

child now or in the foreseeable future." Dr. Eig testified he

"would not support [Mother] as being an independent or sole parent

8 A-0587-16T4 to a minor child, nor would [he] expect her parenting fitness to

change appreciably in the foreseeable future." This is sufficient

evidence that Mother "would be unable to protect and care for

[S.K.L.] on a daily basis." Id. at 436.

Although Mother completed other services, she did not believe

she needed mental health services and admitted she had not

completed any mental health services. Thus, Mother was "unwilling

or incapable of obtaining appropriate treatment" for her mental

health issues. N.J. Div. of Youth & Family Servs. v. H.R., 431

N.J. Super. 212, 223 (App. Div. 2013).

The trial court gave little credence to Mother's "litany of

inadequate excuses" for not complying with services. We agree,

and note Mother's excuses demonstrated the low priority she placed

on visiting S.K.L. and receiving services which would have helped

her remediate the conditions which kept S.K.L. from her care.2 Her

lack of effort to complete any mental health services, and her

belief that she did not require the services despite multiple

recommendations, evidenced that Mother was "unwilling or unable

to eliminate the harm facing the child" stemming from her mental

health issues. N.J.S.A. 30:4C-15.1(a)(2).

2 For example, Mother admitted missing visitation services to go drinking with friends in New York.

9 A-0587-16T4 Further, "proof of the abuse or neglect of a sibling is

admissible in considering harm to a child in a Title 30

Proceeding." Div. of Child Prot. & Permanency v. T.U.B., __ N.J.

Super. __, __ (2017) (citing J. v. M., 157 N.J. Super. 478, 493

(App. Div.), certif. denied, 77 N.J. 490 (1978)). "All any court

can rely upon in determining whether to sever parental rights is

the parents' past course of conduct, whether to the child in

question or to other children in their care." J., supra, 157 N.J.

Super. at 493. Here, S.K.L.'s four older siblings had already

been removed, and Mother had been substantiated for neglect on

several occasions. "We cannot conceive that the Legislature

intended to guarantee to parents at least one chance to [neglect]

or abuse each child." Ibid.

Mother claims she obtained a stable place to live in September

2015. She argues the trial court "did not completely address" her

housing situation. In fact, the court did not rely on Mother's

housing situation. When the court noted "[n]either of [S.K.L.]'s

biological parents is able to provide a safe and stable home for

this child," the court was referring to Mother's failure to

complete mental health services and her refusal to acknowledge she

had a problem.

The trial court found Mother had not remediated the

circumstances which lead to S.K.L.'s removal. We find there was

10 A-0587-16T4 sufficient evidence to support the court's finding that the

Division satisfied prongs one and two.

B.

To satisfy prong three, the Division must have "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." N.J.S.A. 30:4C-15.1(a)(3).

The trial court found the Division made reasonable efforts,

as detailed in "the credible testimony" of Rosa and Noel. Mother

was given a psychological evaluation and was sent to a psychiatrist

for counseling and medication monitoring. She was provided with

domestic violence counseling and parenting classes. The Division

continuously provided supervised visitation with S.K.L., often

changing supervisors and locations to accommodate Mother and

address her concerns about Father. Mother was provided counseling

at Greater Trenton Behavioral Health. She was given repeated

opportunities to receive mental health treatment.

Mother's refusal to engage in certain services, her non-

compliance, and the lack of effectiveness of the programs provided

is not a measure of the Division's effort. "'The diligence of

[the Division]'s efforts on behalf of a parent is not measured by'

whether those efforts were successful." F.M., supra, 211 N.J. at

11 A-0587-16T4 452 (citation omitted). Rather, the Division's efforts are

measured "against the standard of adequacy in light of all the

circumstances of a given case." DMH, supra, 161 N.J. at 393.

Here, there was sufficient evidence for the trial court to find

the Division satisfied prong three.

Mother also argues the Division failed to consider her

brother, J.L., whom she referred as a possible placement for S.K.L.

The Division is required to explore relative placements:

In any case in which the [Division] accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. . . . The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The [Division] shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.

[N.J.S.A. 30:4C-12.1(a) (emphasis added).]

"The Division must perform a reasonable investigation of such

relatives that is fair, but also sensitive to the passage of time

and the child's critical need for finality and permanency." N.J.

Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 87

(App. Div. 2013), certif. denied, 217 N.J. 587 (2014).

Mother testified she talked to J.L. about S.K.L.'s placement

and provided the Division with his cellphone number. Rosa

12 A-0587-16T4 testified she telephoned J.L. and left a voicemail, but he never

returned her call. Moreover, Mother did not provide J.L.'s address

or other identifying information. "[A] parent can[not] expect the

Division to locate a relative with no information[.]" N.J. Div.

of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App.

Div. 2011). Without this information, and without any response

or expression of interest from J.L., the Division's efforts were

reasonable.3

Further, Mother alleges kinship legal guardianship was never

explored by the Division. A court must appoint a caregiver as a

kinship legal guardian if "adoption of the child is neither

feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). Here, the current

caregiver stated her "desire to adopt, [so] the statutory

requirement that adoption is neither feasible nor likely is not

satisfied." H.R., supra, 431 N.J. Super. at 230–31.

C.

To satisfy the fourth prong, the Division must prove by clear

and convincing evidence that "[t]ermination of parental rights

will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

Prong four "serves as a fail-safe against termination even where

3 Rosa believed J.L. was in a severe car accident shortly thereafter and was in a coma for a month. Mother states it was a different brother who was in the car accident. Even if true, J.L. still failed to respond to the Division's call.

13 A-0587-16T4 the remaining standards have been met." N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 609 (2007).

Generally, to satisfy the fourth prong, the Division should

present comparative bonding "'testimony of a well qualified expert

who has had full opportunity to make a comprehensive, objective,

and informed evaluation of the child's relationship' with the

natural parents and the foster parents." N.J. Div. of Youth &

Family Servs. v. R.G., 217 N.J. 527, 559 (2014) (quoting In re

Guardianship of J.C., 129 N.J. 1, 19 (1992)). Here, the court

scheduled a bonding evaluation for Mother, but she failed to

appear. We find this is one of the "few scenarios in which

comparative evaluations would not be required." N.J. Div. of

Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div.

2009).

Dr. Eig testified there "was a secure, warm and strong

attachment" between S.K.L. and her resource parent. S.K.L. had

been with the resource parent since she was one month old, and she

was her psychological parent. Dr. Eig found S.K.L. "would be at

relatively high risk for suffering severe and enduring

psychological or emotional harm if her relationship with [the

resource parent] was permanently ended." By contrast, Dr. Eig

testified S.K.L. "would be at low risk for suffering severe and

enduring harm if her relationship with [Mother] was to be

14 A-0587-16T4 permanently severed." The trial court expressly credited those

conclusions.

The trial court found Mother could not provide permanency.

Dr. Eig found "the longer that permanency is delayed, the higher

the risk of [S.K.L.] suffering severe and enduring harm." We

recognize "the paramount need the children have for permanent and

defined parent-child relationships." J.C., supra, 129 N.J. at 26.

"A child cannot be held prisoner of the rights of others, even

those of his or her parents. Children have their own rights,

including the right to a permanent, safe and stable placement."

N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76,

111 (App. Div.), certif. denied, 180 N.J. 456 (2004). "Keeping

the child in limbo, hoping for some long term unification plan,

would be a misapplication of the law." A.G., supra, 344 N.J.

Super. at 438. The court properly found sufficient evidence to

satisfy the fourth prong.

Affirmed.

15 A-0587-16T4