DCPP VS. P.C.G.-H. AND R.J.H. IN THE MATTER OF THE GUARDIANSHIP OF T.J.H. (FG-07-0116-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4892-16T4
A-4893-16T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
P.C.G.-H. and R.J.H.,
Defendants-Appellants.
______________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF T.J.H.,
a Minor.
______________________________________
Argued September 26, 2018 – Decided October 5, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0116-17.
James D. O'Kelly, Designated Counsel, argued the
cause for appellant P.C.G.-H. (Joseph E. Krakora,
Public Defender, attorney; James D. O'Kelly, on the
briefs).
Anne E. Gowen, Designated Counsel, argued the cause
for appellant R.J.H. (Joseph E. Krakora, Public
Defender, attorney; Anne E. Gowen, on the briefs).
Monisha A. Kumar, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Monisha A. Kumar, on
the brief).
James J. Gross, Designated Counsel, argued the cause
for minor (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; James J. Gross, on the brief).
PER CURIAM
Pamela (P.C.G.-H.) and Robert (R.J.H.) are the parents of Teresa
(T.J.H.).1 In these consolidated appeals, both parents challenge a judgment,
which terminated their parental rights and granted the Division of Child
Protection and Permanency (Division) guardianship of Teresa. We affir m.
I.
The following facts are taken from the record. Pamela and Robert married
in 2006. Teresa was born in 2011, and is presently seven years old.
1
We utilize fictitious names to protect the child and the parties' privacy.
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2
The Division began its involvement with the family in July 2014, after it
received a referral from the Clara Maass Hospital emergency room. Pamela had
brought then three-year-old Teresa to the hospital to treat her asthma. While
Teresa was receiving her nebulizer treatments, Pamela left her alone in the room
and was discovered in the hospital lobby. Hospital staff reported Pamela was
acting belligerently, arguing with workers, and causing a substantial
disturbance. According to hospital staff, Pamela began changing her clothes in
view of other hospital visitors.
When Division caseworkers arrived, they reported Pamela's erratic
behavior and noted concerns for her mental health. Pamela revealed she had
been diagnosed with bipolar disorder, suffered other mental impairments, and
had ceased taking medication. When Division caseworkers transported the
family back to their home, they observed it was unkempt and mandated a home
inspection before Teresa could be returned to Pamela and Robert.
On behalf of the Division, Dr. Elizabeth Grossier conducted a
psychological evaluation of Pamela. Dr. Grossier noted Pamela's substantial
difficulty in maintaining focus and delivering clear and logical thoughts, as well
as manic symptoms and mental confusion. Dr. Grossier found Pamela required
mental health treatment and lacked the capacity to care for herself. She
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concluded Pamela could not act as sole caretaker for Teresa without presenting
a significant risk of harm to the child.
Pursuant to Dr. Grossier's recommendation, Dr. Alexander Iofin
performed a psychiatric evaluation of Pamela. Dr. Iofin concurred with Dr.
Grossier’s conclusion Pamela could not be Teresa's sole caretaker due to
psychiatric and neuropsychiatric problems.
Relying on these evaluations, the Division implemented in-home health
aide assistance four times per week to address Pamela's mental health issues and
care for Teresa. Robert, who was certified as a home health aide, agreed to
provide Pamela fourteen hours of additional assistance each week.
In January 2015, a health aide reported the family's home was without a
functioning gas line, and thus lacked heat or a means to cook food. Eventually,
because of disputes over habitability of the residence and payment of rent, the
family was evicted. Both parents spent several months living between homes
and at a YMCA. Ultimately, they came to live in the home of the father of one
of Pamela's other children.
The Division began to receive reports Robert was experiencing health-
related issues and may not be capable of caring for Teresa independently. In
August 2015, the East Orange Police Department received multiple reports
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Robert had appeared intoxicated, wandering the streets with Teresa. When
police stopped Robert, he was unable to recall his address or telephone number.
The officer determined Robert's symptoms were related to seizures, rather than
intoxication.
Robert disclosed to the Division he suffered from epilepsy, seizures,
memory loss, and had difficulties with speech. He also conceded he and Teresa
were homeless and lacked a support system. Robert claimed he had not spoken
to Pamela in two days and was unsure of her whereabouts. When the Division
located Pamela, she claimed she had left Robert and Teresa to find a parking
spot for her car, but was unable to locate them when she returned, and could not
reach Robert. Pamela was unable to account for her whereabouts during the two
days in question. The Division removed Teresa, and placed her in a resource
home.
Pamela was reevaluated by Dr. Grossier and Dr. Iofin, who both reported
her worsening condition due to her failure to participate in treatment services.
Neither doctor found Pamela to be a viable parenting option for Teresa.
Robert failed to avail himself of the treatment services following Teresa's
removal. He had no contact with the Division for two months, and when he re-
emerged, claimed to have been hospitalized after hitting his head, but produced
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no medical records to support this assertion. Eight months after Teresa's
removal Robert completed a psychological evaluation. However, he failed to
attend multiple neuropsychological assessments, and numerous other
evaluations arranged by the Division.
As a result of failing to comply with services and their deteriorating
condition, the Division changed Teresa's permanency goal from reunification to
termination of parental rights followed by adoption, and filed a guardianship
complaint.
Subsequent to the filing of the complaint, neither parent's compliance
improved. Pamela was discharged from a mental health treatment program for
failure to adhere to treatment recommendations. She then re-enrolled in the
program three days before the permanency hearing, attended regularly for two
months, and ceased attending altogether in February 2017. Robert also failed to
comply with the Division's recommended services. He only briefly enrolled in
a mental health treatment program and admitted using heroin. Both parents
claimed to attend other services independently, but never provided proof of
attendance to the Division or the court.
During the guardianship trial, the Division presented the testimony of Dr.
Mark Singer, caseworker Peggy Wright, and the Division's adoption supervisor
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Robinson Paul. Pamela testified on her own behalf. The law guardian and
Robert did not present testimony.
Dr. Singer testified neither parent possessed the parental capacity to care
for Teresa. He opined Pamela suffered from a substantial thought disturbance
or HIV/AIDS-related dementia, which made her prone to delusional thoughts.
He concluded Pamela's mental condition would deteriorate over time, especially
in less structured "ambiguous" settings encountered by child rearing parents.
Dr. Singer concluded Pamela would be unable to adapt to the evolving needs of
a child.
Dr. Singer concluded Robert also struggled in ambiguous situations due
to his difficulty with comprehension and impaired memory. Dr. Singer found
Robert's inability, or unwillingness, to acknowledge Pamela's mental
deficiencies prevented him from effectively compensating for them. He
concluded neither party was a viable option to parent Teresa.
Dr. Singer also performed a bonding evaluation and concluded Teresa
would experience a negative reaction if her relationship with her parents was
terminated. He opined Teresa required permanency, namely, a stable figure
capable of providing the care and guidance a child requires navigating uncertain
life events. He testified neither parent could provide the stability and
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responsiveness necessary to meet Teresa's need for permanency, because they
were incapable of parenting and would continue to decompensate. He concluded
Teresa's best interest would be served by select home adoption.
In its efforts to seek permanent placement options with relatives, the
Division located and assessed Teresa's maternal aunt as a potential placement.
However, she was ruled out due to inadequate living accommodations. The
Division located Teresa's maternal uncle, however he withdrew from
consideration citing medical concerns related to his wife. The Division assessed
the father of another one of Pamela's other children who presented himself as a
placement option for Teresa, either through adoption or kinship legal
guardianship (KLG), but subsequently withdrew his application. K.G., Pamela's
adult daughter who resided in Alabama, expressed an interest in adopting
Teresa. However, her home ultimately failed the interstate licensing process.
Notwithstanding, Paul testified Teresa was a candidate for adoption. He
stated the Division would place Teresa into the New Jersey Adoption Exchange,
the National Adoption exchange, and enroll her in Division-organized social
events to enable Teresa to interact with potential adoptive families.
On June 29, 2017, Judge Wayne J. Forrest issued a forty-eight-page
written opinion terminating the parties' parental rights. The judge found the
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Division had proven all four prongs of the best interest of the child test under
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.
Specifically, the judge found Pamela and Robert's chronic homelessness
and long standing housing instability had endangered Teresa. The judge found
Pamela's severe and worsening untreated mental condition continued to
endanger Teresa. He found Robert's untreated medical conditions were the
cause of Teresa's removal.
Under the second prong, the judge found the parties' failure to address
their mental health and medical needs was proof they were unable or unwilling
to remove the harm confronting Teresa. The judge concluded the parties' failure
to ameliorate their condition would inevitably compound the harm she had
already suffered.
As to the third prong, the judge found the Division had satisfied its
obligation to offer services to each parent prior to seeking termination of their
parental rights. The judge also found there were no viable options to termination
of parental rights because KLG and other relative placements were considered,
but had failed.
As to the fourth prong, the judge concluded Teresa's best interests would
be served by termination of parental rights followed by adoption, and
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termination would not do more harm than good. Specifically, the judge noted
the importance of permanency to Teresa's healthy development and concluded
the parties' inability to mitigate the circumstances, which led to the child's
removal, left no possibility of permanency with them. The judge acknowledged
severance of the parental relationship would cause some negative impact, but
concluded neither Pamela nor Robert could provide the care and stability
necessary to achieve permanency. The judge found granting the Division
guardianship would allow it to seek a broad range of permanency options in
adoption otherwise unavailable to Teresa.
The Division was granted guardianship of Teresa. This appeal followed.
II.
Our scope of review on appeal from an order terminating parental rights
is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)
(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will uphold
a trial judge's factfindings if they are "supported by adequate, substantial, and
credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,
552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008)). No deference is given to the court's "interpretation of the law" which
is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J.
A-4892-16T4
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Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides v.
Protameen Chems., 160 N.J. 352, 372 (1999)).
"We accord deference to factfindings of the family court because it has
the superior ability to gauge the credibility of the witnesses who testify before
it and because it possesses special expertise in matters related to the family."
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing
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 appe llate
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 G.L., 191 N.J. at 605). We also accord
deference to the judge's credibility determinations "based upon his or her
opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs.
v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, 154 N.J. at 411-
13).
When terminating parental rights, the court focuses on the "best interests
of the child standard" and may grant a petition when the four prongs set forth in
N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re
Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria
enumerated in the best interests standard are not discrete and separate; they
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relate to and overlap with one another to provide a comprehensive standard that
identifies a child's best interests." Id. at 348.
As codified, N.J.S.A. 30:4C-15.1(a) requires the Division prove:
(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.
On appeal, Robert challenges the judge's findings on all four prongs and
urges us to conduct de novo review. Regarding prongs one and two, Robert
claims the judge's decision did not explain how his disabilities harmed Teresa
or affected his ability to parent. As to prong three, he argues the Division failed
to make reasonable efforts to assist him in managing his epilepsy or help either
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parent find housing. Robert asserts the judge's prong four finding was erroneous
because his ability to parent, and the absence of an adoptive placement,
demonstrated termination would do more harm than good.
Additionally, Robert argues Dr. Singer's report does not support the
termination of parental rights and is a net opinion. He also asserts Dr. Singer
interpreted the psychological testing in a biased manner favoring the Division.
Robert asserts the questions the judge asked of the Division's expert at trial
demonstrate the judge had ceded the fact-finding function to the expert.
Pamela challenges the judge's findings under prongs three and four. As
to prong three, she argues the Division failed to consider alternatives to
termination of parental rights, namely that K.G. was willing to adopt Teresa.
Pamela also challenges the findings under prong four, and argues termination
would do more harm than good because there was a pending interstate
assessment to place Teresa with K.G. Pamela argues the guardianship should
have been dismissed and the matter returned to the FN docket rather than
proceed to a guardianship trial.
After reviewing these arguments in light of the record and applicable legal
principles, we are convinced they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Forrest's factual
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findings are supported by the substantial credible evidence and his legal
conclusions are unassailable in light of those findings. See N.J. Div. of Youth
& Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We only add the following
relating to the parties' arguments under prong four.
Prong four requires the Division to show "[t]ermination of parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Termination of
parental rights poses a risk to children due to the severing of the relationship
with their natural parents, but it is based "on the paramount need the children
have for permanent and defined parent-child relationships." K.H.O., 161 N.J. at
355 (quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)).
Thus, "the fourth prong of the best interests standard [does not] require a
showing that no harm will befall the child as a result of the severing of biological
ties." Ibid. Prong four "serves as a fail-safe against termination even where the
remaining standards have been met." G.L., 191 N.J. at 609. "[T]he question to
be addressed under [prong four] is whether, after considering and balancing the
two relationships, the child[ren] will suffer a greater harm from the termination
of ties with [their] natural parents than from permanent disruption of [their]
relationship with [their] foster parents." I.S., 202 N.J. at 181 (quoting J.N.H.,
172 N.J. at 478).
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Pamela and Robert argue the evidence in the record was insufficient to
support the judge's conclusion the termination of parental rights would not do
more harm than good because Teresa maintained a strong relationship with her
parents, the Division had not located a permanent adoptive home for her, and
the Division's expert testimony confirmed Teresa would be harmed by severance
of her parental relationships. Both parents rely upon E.P., 196 N.J. 88, 92-93
(2008), where the Supreme Court reversed a judgment terminating the parental
rights of a mother to her thirteen-year-old daughter.
In E.P. the child was in her seventh foster home, and her prospects of
adoption were "slim," "bleak," and "elusive." Id. at 109. The child's mother
was the "one sustaining force in [her] life . . . ." Ibid. The child had an extreme
and violent reaction to the prospect of adoption, and attempted to take her own
life upon learning she would not be unified with her mother. Id. at 105.
The Court found the termination of parental rights did "not appear to have
any real compensating benefit, particularly in light of the expert opinions
rendered at the guardianship hearings that the 'window of attachment to
somebody else is closing real fast.'" Id. at 109. The Court noted the child
maintained an intense emotional bond to her mother, and the relationship must
be weighed against the "slender prospect of adoption[.]" Id. at 110. The Court
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concluded it was "highly questionable" the child "would ever find a home with
a foster family." Ibid.The E.P. Court noted a "decision to terminate parental rights should not
simply extinguish an unsuccessful parent-child relationship without making
provision for a more promising relationship [in] the child's future." Id. at 108
(citing Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986)). It
found a termination under such circumstances may cause substantial harm to the
child. Id. at 109. The Court stated although the Division's goal must be to
achieve permanency, "the unlikely possibility of permanency in the future"
should not outweigh "a strong and supportive relationship with a natural parent."
Id. at 110-11.
The facts here are different. Teresa has not exhibited any of the same
substantial behavioral concerns as the child in E.P. She has remained with the
same resource parent, without incident, for the entirety of the two years she has
been separated from Pamela and Robert. The resource parent remains
committed to caring for Teresa until a permanent placement is located. Dr.
Singer testified termination of parental rights followed by select home adoption
was in the Teresa's best interest, and a delay in permanency would cause greater
harm to her than would severance of the parental relationship. Additionally, the
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Division presented unrebutted testimony it expected no difficulty in finding a
permanent adoptive placement for Teresa once she was freed for adoption.
Pamela also relies on N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J.
Super. 228 (App. Div. 2010). There, the trial court had terminated the parental
rights of a mother and father. Id. at 232. On appeal, we reversed because a
significant change in circumstances had occurred since the entry of the
guardianship judgment, namely, the mother had "continue[d] her sobriety, [was]
fully compliant with parole, remain[ed] employed and sustain[ed] adequate
housing." Ibid.T.S. is inapposite. The circumstances here have not changed for the
better, to warrant reversal of guardianship judgment. The facts support Judge
Forrest's conclusion "[Teresa] will receive the permanency and stability she
deserves upon termination of the parental rights . . . and being made legally free
for adoption."
Affirmed.
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