DCPP VS. A.H. AND V.J., IN THE MATTER OF THE GUARDIANSHIP OF K.V.J. (FG-07-0068-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1742-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.H.,
Defendant-Appellant,
and
V.J.,
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.V.J.,
a Minor.
_____________________________
Submitted October 10, 2019 – Decided November 8, 2019
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0068-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Sigrid Sletteland Franzblau, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Amy L. Bernstein, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Todd S. Wilson, Designated
Counsel, on the brief).
PER CURIAM
Defendant A.H. appeals from the December 3, 2018 order of the Chancery
Division terminating her parental rights to her daughter K.V.J. 1 We affirm.
I.
A.H. gave birth to K.V.J. in 2016. Defendant V.J. is the child's father. He
surrendered his parental rights and has not participated in this appeal.
A little more than four months after K.V.J.'s birth, the Division of Child
Protection and Permanency (DCPP or Division) received a referral A.H. had
dropped the child off at her cousin's house a month earlier. The cousin reported
1
We use initials to protect the anonymity of the child. R. 1:38-3(d).
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she had no contact information for A.H., apart from her Facebook page, and did
not know where she was. A.H. had not left proof of the child's medical insurance
or written authorization to make medical decisions for the child. In addition,
apart from twenty-four dollars A.H. left on a windowsill, the cousin received no
financial support from A.H. to care for the child. The cousin reported A.H. had
been using drugs, was hearing voices, and told her she did not want K.V.J.
A few days later, Division representatives found A.H. waiting on the
porch of her cousin's home. A.H. was intent on taking K.V.J. to Pennsylvania.
The cousin had called police and refused to permit A.H. into her home because
of her history of violent behavior. A.H. was uncooperative but admitted she left
K.V.J. with her cousin with no provisions for her care. A.H. acknowledged she
was unstable, had been "running the streets," and was not taking medication
prescribed for her psychiatric illnesses. A.H. appeared to be under the influence
of controlled substances, as she nodded off several times while speaking with
the DCPP staff members. By the time police arrived, A.H. was unresponsive.
DCPP effectuated a "Dodd removal" of K.V.J.2 The notice of removal was left
on A.H.'s lap because she was not conscious.
2
A "Dodd removal" refers to the emergency removal of a child from the home
without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd
Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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DCPP filed a complaint in the Chancery Division seeking custody, care,
and control of K.V.J. The court granted temporary custody to DCPP. The
Division's plan was to provide services to A.H. to facilitate reunification.
DCPP placed K.V.J. with A.H.'s cousin and offered A.H. supervised
visitation at DCPP's office. The Division also scheduled A.H. for services,
which she did not attend. She yelled profanities at a DCPP caseworker who
attempted to reschedule the services.
A.H. did not visit K.V.J. for almost a month after the child's removal from
her custody. During part of that time, A.H. was hospitalized after being found
wandering the streets in a state of paranoia. Shortly after her first visit with
K.V.J., A.H. was arrested on three outstanding warrants. While in jail, A.H.
admitted to hearing voices. DCPP arranged for A.H. to attend an intensive
outpatient drug treatment program and anger management classes. A.H. failed
to participate in those services.
During the following months, A.H. was hospitalized several times for
psychiatric issues. During one hospitalization, A.H. was placed in restraints due
to her aggressive behavior. She admitted to having taken herself off medications
prescribed for bipolar disorder and schizophrenia. She was arrested and
convicted of assaulting a police officer, involuntarily committed several times,
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admitted to hearing the voices of God and her children calling out to her, and
reported having visions of her children when they were not with her.
After being found wandering outside a police station, A.H. admitted being
depressed and suicidal. She acknowledged using "molly," the commonly used
name for MDMA, a synthetic drug that alters mood and perception, and Xanax,
a drug used to treat anxiety and panic disorders. She said "molly" gave her
special powers to read people's minds and made her feel closer to God. At a
court hearing A.H. tested positive for amphetamines, methamphetamines,
benzodiazepines, and antidepressants. Although claiming some of these drugs
had been prescribed for her, A.H. did not produce proof of any prescriptions,
despite court orders to do so. DCPP referred A.H. for several psychological
evaluations. She did not attend any of her scheduled appointments.
Although A.H. claimed to have been receiving services in Pennsylvania,
where she then lived, she did not produce evidence of her claim. DCPP's
attempts to get records of A.H.'s treatment in Pennsylvania were not successful.
DCPP referred A.H. to a certified drug and alcohol counselor on several
occasions. She repeatedly failed to appear. When she did attend an evaluation,
she was "very hostile and very aggressive" and refused to give a urine sample.
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A.H.'s visits with K.V.J. were sporadic. DCPP was unable to contact A.H.
for long periods of time. On occasion, months would pass between visits. When
the child was fifteen-months old, A.H. visited after a five-month absence.
K.V.J. was visibly upset during the visit and cried when A.H. would reach for
her. A month later, A.H. visited K.V.J. She had to resort to candy to tempt the
child to come to her because K.V.J. was unfamiliar with her mother. A.H. did
not visit the child again until three months later. During that visit, K.V.J. was
again unfamiliar with A.H. During her final visit, A.H. told K.V.J. that she had
to come home with her to stop A.H. from "going crazy." A.H. admitted that she
was triggered by the visit and felt a "psychiatric episode" coming on.
In December 2017, K.V.J. was moved from the cousin's house and placed
in a DCPP-approved resource home. The change in physical custody was
brought about by the cousin's inability or refusal to provide required medical
and personal records to DCPP and to make repairs to the cousin's home deemed
necessary for the child's safety.
DCPP contacted and assessed several maternal and paternal relatives as
possible placements for K.V.J. The evaluation of the father's adult daughter was
unsuccessful because she and her roommate refused to be fingerprinted. A.H.'s
mother, who had custody of some of A.H.'s other children, was evaluated by
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DCPP. She informed the agency she did not want to care for any additional
children. DCPP ruled out A.H.'s grandmother because she was living in senior
housing, which precluded placement of the child. The father's sister refused to
participate in the DCPP evaluation process. Two additional out-of-state
placements, including A.H.'s aunt, were considered.
The father recommended C.S., a family friend in Georgia he considered
to be his stepsister. C.S. was a licensed foster parent with a history of providing
foster care in New Jersey and Georgia. The child was placed with C.S. after she
was approved as a resource parent. C.S. expressed her desire to adopt K.V.J. A
DCPP evaluation determined K.V.J. was receiving excellent care and support
from C.S. The court subsequently held a permanency hearing and approved
DCPP's plan for termination of A.H.'s parental rights.
A trial was held in November 2018. A.H. did not attend the trial and her
attorney reported that she did not wish to appear by telephone. DCPP did not
offer an expert witness to opine on the bond between A.H. and the child because
A.H. refused to submit to a bonding evaluation. A.H. did not call any witnesses.
The law guardian representing K.V.J.'s interests supported DCPP's application.
The trial court issued an oral opinion concluding DCPP satisfied the four-
prong statutory criteria for termination of A.H.'s parental rights. The court
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found A.H.'s failure to provide for the care of K.V.J., her effective abandonment
of the child, history of incarceration, drug abuse, hospitalizations, and refusal to
take psychiatric medications harmed and endangered K.V.J. In addition, the
court found A.H. unable or unwilling to address the causes of the harms.
The court found "[t]here's absolutely no question" DCPP made reasonable
efforts to reunify A.H. and K.V.J. by offering A.H. numerous services, but A.H.
refused to participate in those services. Finally, the court found termination of
A.H.'s parental rights would not do more harm than good to K.V.J. The court
concluded A.H. had, in effect, already terminated her relationship with the child
and K.V.J. would not be harmed by separation from A.H. Based on these
findings, the court entered a December 3, 2018 order terminating A.H.'s parental
rights to K.V.J.
This appeal followed. A.H. raises the following arguments for our
consideration:
THE TRIAL COURT ERRED IN FINDING THAT
THE DIVISION CARRIED ITS CLEAR AND
CONVINCING BURDEN OF PROOF UNDER
N.J.S.A. 30:4C-15.1(a).
A. THE TRIAL COURT ERRED IN FINDING
PRONG THREE WAS SATISFIED BECAUSE DCPP
DID NOT MAKE ANY MEANINGFUL EFFORT TO
PROVIDE SERVICES TO A.H.
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B. THE TRIAL COURT ERRED IN FINDING
PRONG THREE WAS SATISFIED BECAUSE THE
DIVISION DID NOT INVESTIGATE OR ASSESS
THE RELATIVES OF A.H. AS POTENTIAL
PLACEMENTS FOR K.V.J.
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).
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). "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); see 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
appellate court intervene and make its own findings to ensure that there is not a
denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008) (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
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(App. Div. 2006). 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).
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
relate to and overlap with one another to provide a comprehensive standard that
identifies a child's best interests." Id. at 348.
N.J.S.A. 30:4C-15.1(a) requires the Division to 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
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(4) Termination of parental rights will not do more
harm than good.
A.H. challenges only the court's determination DCPP satisfied the third
prong of the statutory test. Specifically, she argues the Division did not make
reasonable efforts to provide appropriate services to assist her in achieving the
stability necessary to care for K.V.J. In addition, A.H. argues DCPP did not
satisfy its obligation to assess placement of the child with a relative before
placing her with a non-related family friend.
Under prong three, DCPP's efforts must be analyzed "with reference to
the circumstances of the individual case[,]" including the parent's degree of
participation. In re Guardianship of DMH, 161 N.J. 365, 390 (1999). N.J.S.A.
30:4C-15.1(c) defines reasonable efforts as those reasonable "attempts by an
agency authorized by [DCPP] to assist the parents in remedying the
circumstances and conditions that led to the placement of the child and in
reinforcing the family structure . . . ." The statute sets forth examples of
"reasonable efforts," including but not limited to:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
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(3) informing the parent at appropriate intervals of
the child's progress, development, and health;
and
(4) facilitating appropriate visitation.
[Ibid.]
After carefully reviewing A.H.'s arguments in light of the record and
applicable legal principles, we are convinced there is adequate, substantial, and
credible evidence supporting the trial judge's findings of fact and agree with its
legal conclusion DCPP satisfied all of the statutory requirements for termination
of A.H.'s parental rights to K.V.J.
The record demonstrates DCPP offered A.H. numerous opportunities to
address her mental health and substance abuse issues and her apparent inability
to provide a safe and secure existence for K.V.J. The Division offered A.H.
counseling, psychological and psychiatric evaluations, parenting skills clas ses,
anger management classes, substance abuse evaluations, supervised visitat ion,
and family team meetings. She failed to take advantage of those opportunities.
It is apparent that A.H. suffers from serious mental health and substance
abuse issues that likely explain her unwillingness or inability to participate in
the services needed to become a reliable parent to K.V.J. Her failure to
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participate in services, even if arising from her illnesses, does not negate the
reasonable efforts the Division made to reunify A.H. with her daughter.
We see no merit in A.H.'s argument DCPP should have done more to
confirm the services A.H. claimed to have been receiving in Pennsylvania or
yielded to that State's supervision of the relationship between A.H. and K.V.J.
A.H. did not produce evidence of successful treatment in Pennsylvania of her
substance abuse issues or compliance with her psychiatric medication regimen.
DCPP cannot be faulted for continuing its efforts to provide services to A.H. in
New Jersey and pursuing a permanency plan for K.V.J., who was in this State.
Nor are we convinced DCPP failed to consider A.H.'s family members as
placements for K.V.J. before placing her with C.S. It is "well established that it
is the Division's policy to place children with relatives whenever possible." N.J.
Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div.
2003). There is, however, no presumption in favor of placement with a relative
over a suitable third party. Id. at 528-29. There is adequate, substantial, and
credible evidence supporting the trial court's conclusion DCPP actively pursued
relatives of A.H. for placement of K.V.J. The cousin at whose home A.H.
initially left K.V.J. failed to complete the process necessary for DCPP approval.
A.H.'s mother informed the agency she did not want to care for any additional
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children. A.H.'s grandmother lived in senior housing, where placement of an
infant is not permitted. When the Division placed K.V.J. with C.S., review of
A.H.'s aunt in Pennsylvania was still pending. The outcome of that review was
uncertain. The record supports the trial court's finding there was no reason to
delay K.V.J.'s placement in a home where she had a likelihood of permanency
to await the outcome of the review of A.H.'s aunt. A.H. had failed to provide a
stable and secure home for her daughter, who had been in foster care for nearly
two years at the time of her placement with C.S. See N.J. Div. of Youth &
Family Servs. v. J.S., 433 N.J. Super. 69, 87 (App. Div. 2013) ("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.").
Affirmed.
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