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) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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
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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
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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.
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