DCPP VS. M.S. AND J.H., IN THE MATTER OF THE GUARDIANSHIP OF J.M.H. (FG-11-0015-18, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-5292-17T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
M.S.,
Defendant-Appellant,
and
J.H.,
Defendant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.M.H.,
a Minor.
______________________________
Argued January 15, 2019 – Decided February 13, 2019
Before Judges Fisher, Suter and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0015-18.
Jennifer M. Kurtz, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Jennifer M. Kurtz, on the briefs).
Julie B. Colonna, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Julie B. Colonna, on the
brief).
Linda V. Alexander, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Linda V. Alexander, on the
brief).
PER CURIAM
M.S. (Mona)1 appeals the Judgment of Guardianship that terminated her
parental rights under N.J.S.A. 30:4C-12. Mona contends the judgment lacked
sufficient evidence, concluded erroneously that termination would not do more
harm than good and was entered without considering reasonable alternative
caretakers. We reject these arguments and affirm.
I.
1
We use fictitious names to protect the confidentiality of the family members
and children. R. 1:38-3(d)(12).
A-5292-17T3
2
Mona and J.H. (Joe) have one child, J.M.H. (Jane), who was born in March
2016. Mona has two older children, J.S. and I.S. Their father, R.W., is not a
party. Under a consent order in a separate case in the Family Division, the two
older children live with Mona's mother, J.S. (Jackie), who has residential
custody of them.
This appeal concerns Jane. In May 2016, the Mercer County Prosecutor's
Office contacted the Division of Child Protection and Permanency (Division),
reporting that shortly after Jane's birth, two nurses heard Mona screaming and
found Joe trying to strangle her in the hospital room.2 Mona denied this to the
Division's caseworker, insisting that hospital personnel saw Joe giving her a
massage. She refused to request a restraining order.
Jane was born prematurely at twenty-five weeks gestation with lung
congestion, seizures, and developmental delays. The hospital reported Jane
likely was born prematurely due to "placenta abruption." Mona said this was
"due to me and my baby daddy . . . fighting all the time."
Jane was in the hospital for three months after her birth. Mona's visitation
with her was not consistent. She did not complete training on the apnea machine
2
This was not the first referral to the Division about Mona, but the others in
2012, 2013 and earlier in 2016, all were closed either as unfounded or not
established.
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3
required for Jane's breathing. She did not purchase Jane's medication or an
appropriate crib, stroller or car seat. Mona did not come to the hospital when
Jane was discharged in June 2016.
The Division was granted custody, care and supervision of Jane. She was
placed in a nonrelative foster home immediately after her discharge from the
hospital where she still resides.
Mona was referred by the Division for a substance abuse evaluation, a
psychological evaluation, and domestic violence counseling. She enrolled
herself in a parenting program. She had weekly supervised visitation with Jane,
that she regularly attended through December 2016. She secured housing and
was employed. Her psychological evaluation showed she needed parental skills
training classes, domestic violence counseling, psychotherapy and counseling,
which she obtained at Children's Home Services (CHS).
In October 2016, Mona applied for and was granted a domestic violence
restraining order against Joe because he was scheduled to be released from jail.
However, she dismissed it in December 2016 to resume a relationship with him.
In March 2017, a caseworker also saw Joe use a key to enter Mona's apartment.
Shortly after, Mona called the police complaining that Joe choked her until she
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could not breathe. She showed visible injuries; the police arrested Joe but Mona
declined to apply for a restraining order.
Mona was no longer employed by this time. Her visits with Jane were
sporadic. Between August and October 2017, she attended only three visitations
with Jane. She did attend a program for domestic abuse, but returned to Joe
while attending it. She failed to comply with updated substance abuse
evaluations to monitor her for alcohol abuse. Mona stopped visitation with Jane
in October 2017 and did not see her again until April 2018. She was terminated
from the CHS program in December 2017 for non-compliance. She did not
remain in contact with the Division. The Division's complaint for guardianship
was filed in September 2017.
The Division explored options for placing Jane with maternal or paternal
relatives. Mona's sister, A.S. (Amy), contacted the Division two weeks after
Jane's birth, offering to care for the child.3 In August 2016, Mona told the
Division she wanted Amy to be assessed as a placement for Jane. A week later,
Mona changed her position after learning the Division was exploring a paternal
aunt, S.Y. (Sylvia), as a possible resource. Sylvia lived in New Jersey; Amy
3
The timing is uncertain because the prosecutor's referral of this matter to the
Division was in May 2016, almost two months after Jane was born.
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5
lived in North Carolina. The Division's records indicated placement with Amy
was raised again in November 2016, but Mona did not want Jane to go there.
This was during the period when reunification with Mona remained the goal. In
April 2017, Amy advised the Division that she "was not willing to move forward
with the [interstate] process."
Amy contacted the Division again in September 2017. She advised she
had not presented herself earlier as a resource because of the distance to North
Carolina. She told the Division she kept asking Mona and eventually Mona said
"yes" to her requests. The Division commenced the interstate evaluation process
through North Carolina at the end of September 2017. At one point in December
2017, Mona left a message for the Division worker, stating that she wanted to
surrender her parental rights to Amy. In January 2018, the Division followed
up with North Carolina and Amy about Jane's placement. When this case was
tried in June 2018, Amy was on her "last look" by North Carolina, meaning she
could be certified as a foster parent once she passed its evaluation.
The Division had contacted Mona's mother, Jackie, in June 2016. She did
not want to care for Jane. She already was residential custodian for Mona's two
other children. She became irate and abusive and hung up the phone on the
caseworker. In April 2017, Mona requested that her mother be considered for
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6
placement but the Division did not place Jane there because the Division's
records reported Jackie had a "substantiation history."
The Division also contacted Joe's mother but she was unable to care for
Jane. She suggested her daughter Sylvia but Joe had listed Sylvia's address as
his residence upon his release from jail. Mona told the Division she did not
want it to continue exploring Sylvia as an option for Jane's placement. Mona
wanted Jane to remain with the resource family until reunification because Jane
had a bond with them. Sylvia was later ruled out because she already had a
relative child in her care and was in the process of becoming a licensed resource
parent for that child. Jane's current resource parents remain committed to
adopting her.
The guardianship trial was conducted in June 2018. By then Jane had
resided with the resource family for two years. Dr. Janet Eig, Psy.D., testified
at trial that she performed psychological and bonding evaluations. She
diagnosed Mona with post-traumatic stress disorder due to trauma and a
borderline personality disorder given her "pattern of intense volatile
relationships, her engagement in self-harming behaviors [and] her mood
instability . . . ." She had an alcohol use disorder in early remission. Mona
suffered from anxiety, depression and had made suicide attempts.
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Dr. Eig testified Mona was not able to independently care for Jane. She
lacked the ability to nurture or provide for the child, there were "protection"
issues because of her volatile relationship with Joe, she did not provide good
guidance, had trouble managing her anger and had a history of involvement "in
intense and volatile relationships." Mona had not completed any therapy,
meaning she had not addressed her "anger problems, past trauma" nor things
that contributed to her "mental health problems." She also did not want to talk
to anyone about these issues. She could not keep a calm environment for the
child because of anger management problems. Her inconsistent visitation
affected Jane's ability to develop a relationship with her. Jane needed a lot of
"focus, concentration and the ability to manage stress," but Mona had a low
frustration tolerance. She was easily distracted.
Dr. Eig testified that Jane's attachment to Mona was "insecure and
detached." There was "not a significant psychological attachment or bond
between the two of them." However, Jane had a "very secure attachment with
the resource parents." Dr. Eig testified Jane would suffer significant harm if
separated from her resource parents; Mona was not capable of mitigating this
harm.
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Dr. Eig, who also evaluated Amy, testified that she might be able to
mitigate the harm to Jane if she were removed from her resource parents, but
Amy had not met Jane before the bonding evaluation. She would have to have
"regular . . . therapeutic visitation" for a relationship to develop, which would
be difficult because she lived in North Carolina. She stated it would be
"detrimental" to move Jane from her resource parents because of her "very
secure attached relationship" with them. Jane was "thriving" in the resource
home.
She testified Jane's safety, health, or development had not been
endangered "at this point" but that Jane's premature birth resulting from abuse
was harm her father had caused. Mona was unwilling to engage in treatment,
placing Jane at risk of harm.
Following a two-day trial that Mona did not attend, the trial court
terminated Mona's parental rights to Jane. The court found that Mona
demonstrated "poor insight and judgment" in protecting Jane from domestic
violence. Her conduct caused Jane to suffer harm and placed her at risk of harm.
Mona would not obtain a restraining order, did not have stable housing, nor did
she undergo training to care for Jane's conditions. She later obtained a
A-5292-17T3
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restraining order but then dismissed it. Mona persisted in her relationship with
Joe despite domestic violence services.
Mona's visitation with Jane was inconsistent, particularly after March
2017. Mona was terminated from the parenting skills program. Dr. Eig testified
about Jane's insecure attachment to Mona and the harm to Jane if she were
removed from her resource parents to whom she was securely bonded. Mona
could not mitigate this harm. The court found that based on the parents' "failure
to remediate their serious domestic violence and mental health issues, comply
with required visitations, and successfully complete the majority of court -
ordered services," Jane's safety, health or development "has been or would
continue to be endangered by a parental relationship with [either parent]."
The court found Mona was unwilling or unable to eliminate these harms.
She did not address her "toxic relationship" with Joe. She defended him and
declined to maintain a protective order. Her visitations with Jane were
inconsistent and she was terminated from that program. She returned to her
relationship with Joe even after attending domestic violence counseling. The
judge found it unlikely that either parent was capable of providing the care and
supervision Jane needed. Mona was not capable of parenting Jane
A-5292-17T3
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independently. The court concluded there was no reason to delay placement
because neither parent could provide a safe and stable home for Jane.
The court found the Division made reasonable efforts to provide services
and to consider other alternatives to termination. Her visitation was inconsistent
and was terminated. She sporadically attended the parenting program and was
terminated. She was inconsistent in attendance at the therapeutic treatment
program.
The court also found the Division evaluated several different potential
caregivers. Sylvia was ruled out because she had another "relative child in her
care and was still going through the process of becoming a licensed resource
caregiver." Also, Joe gave her address for his residence. The maternal
grandmother was ruled out because she had a prior history with the Division and
was not willing to be a caretaker. Mona went back and forth on placing the child
with her sister Amy because of the distance to North Carolina.
The court found that termination of Mona's parental rights to Jane would
not do more harm than good. Jane lacked a strong bond with Mona; she never
resided with her. For a bond to develop, Mona would have to attend therapeutic
visitation and re-engage services. However, Mona lacked the focus necessary
to parent Jane, at least without appropriate therapy. In contrast, Jane had a
A-5292-17T3
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significant or positive bond with her resource parents and would suffer harm if
this bond were terminated. Mona could not mitigate the harm to Jane if this
bond were disrupted.
Amy had no bond with Jane. To mitigate any harm to Jane by removing
her from her resource parents, Amy would need weekly therapy, which would
be a long difficult process because she resided in North Carolina. The court
concluded that termination of parental rights was in Jane's best interest because
all four prongs of N.J.S.A. 30:4C-15.1(a) had been proven by clear and
convincing evidence.
Defendant argues on appeal that termination of her parental rights was in
error. She raises the following issues:
I. THE TRIAL COURT ERRED IN CONCLUDING
THAT REASONABLE ALTERNATIVES TO
TERMINATION OF PARENTAL RIGHTS WERE
CONSIDERED AND PROPERLY RULED OUT
BECAUSE DCPP FAILED TO TIMELY ASSESS
AND PLACE THE CHILD WITH AVAILABLE
RELATIVE CARETAKERS.
II. THE TRIAL COURT’S CONCLUSION THAT
JANE'S SAFETY, HEALTH OR DEVELOPMENT
WAS ENDANGERED WAS ERRONEOUS
BECAUSE IT STEMMED FROM THE LEGALLY
ERRONEOUS ASSUMPTION THAT J.H.'S PAST
ASSAULTS ON M.S. DEMONSTRATED HARM TO
JANE AND RELIED UPON FACTS FOR WHICH
A-5292-17T3
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THE RECORD LACKED CLEAR AND
CONVINCING EVIDENCE.
III. THE TRIAL COURT'S CONCLUSION THAT
M.S. WAS UNABLE TO CARE FOR JANE WAS
BASED UPON SPECULATION AND ISSUES THAT
WERE NOT IDENTIFIED BY DCPP UNTIL A MERE
TWO MONTHS BEFORE TRIAL, AND ITS
CONCLUSION THAT JANE REQUIRED
PERMANENCY WITH THE [FOSTER PARENTS]
WAS A DIRECT PRODUCT OF DCPP’S BLATANT
DISREGARD OF RELATIVE CARETAKERS.
IV. THE TRIAL COURT'S LEGAL CONCLUSION
THAT TERMINATION OF PARENTAL RIGHTS
WILL NOT DO MORE HARM THAN GOOD WAS
ERRONEOUS BECAUSE IT NEEDLESSLY
DESTROYED THE CHILD'S FAMILIAL TIES
WHEN RELATIVES WERE WILLING AND ABLE
TO CARE FOR THE CHILD BUT ABJECTLY
IGNORED BY DCPP.
II.
N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the
termination of parental rights in the "best interests of the child" if the following
standards are met:
(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.
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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.
A trial court's decision to terminate parental rights is subject to limited
appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family
courts' special . . . expertise in family matters, appellate courts should accord
deference to family court factfinding."). The family court's decision to terminate
parental rights will not be disturbed "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).
Because we find that the trial court's findings are supported by adequate,
substantial and credible evidence in the record, we affirm for the reasons set
forth in the trial court's forty-eight page written decision. We add only these
brief comments.
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We are satisfied the trial court correctly determined that there was clear
and convincing evidence to support each prong of the best interest test. There
was harm to Jane. Mona visited inconsistently with Jane and then voluntary
withdrew from her life and any responsibilities for her care. She has never
provided any care for her special needs child. It is not rebutted that her bond
with Jane is insecure and not developed because of her lack of interaction with
Jane. There was nothing in the record to dispute that Mona lacks the ability or
inclination to overcome her limitations and become a responsible parent. She
did not engage in therapeutic visitation; she admitted she does not like to talk to
anyone and would not engage in meaningful therapy to address her
psychological problems. She does not dispute she was provided with adequate
services, but she showed no improvement. She continued her "toxic"
relationship with Joe. She did not complete parenting classes or therapy.
Defendant's contention the Division made "no effort" to place Jane with
one of the relatives under consideration is without merit. In N.J. Div. of Youth
& Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011), we said
that the Division should not "place a child with a foster parent interested in
adoption without considering, as required by N.J.S.A. 30:4C-12.1, whether a
capable relative is also available." We also said "there is no presumption in
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favor of placement with relatives . . . ." Ibid. "Rather, '[a] presumption of
custody only exists in favor of a natural parent as opposed to placement with
relatives or foster parents.'" N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J.
Super. 69, 82 (App. Div. 2013) (quoting N.J. Div. of Youth & Family Servs. v.
M.F., 357 N.J. Super. 515, 528 n.3 (App. Div. 2003)).
The Division explored other relatives where Jane might be placed. The
paternal aunt, Sylvia, was ruled out because she had a relative child in her care
and was still in the process of becoming licensed as a resource parent. The
maternal grandmother, Jackie, was already raising two other children and did
not want to raise Jane. Amy was out of state and had no relationship with Jane.
Mona went back and forth about placing Jane with Amy. While reunification
efforts were underway, the Division appropriately considered in -state options.
It commenced the interstate review thereafter. Even if a relationship could be
developed, there was no certainty that Amy could mitigate any harm caused by
disrupting the relationship with Jane's resource parents. In re Guardianship of
D.M.H., 161 N.J. 365, 379 (1999).
We are satisfied on this record that the trial judge appropriately applied
the best interests standards under N.J.S.A. 30:4C-15.1 in terminating Mona's
parental rights.
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Affirmed.
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