DCPP VS. S.R.C.-B. and K.A.C., IN THE MATTER OF THE GUARDIANSHIP OF J.-A.M.C., J.T.C., AND J.M.C. (FG-04-0170-18, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-2186-18T3
A-2188-18T31
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.R.C.-B. and K.A.C.,
Defendants-Appellants.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.-A.M.C.,
J.T.C., and J.M.C.,
Minors.
__________________________
Submitted March 26, 2020 – Decided May 20, 2020
Before Judges Suter and DeAlmeida.
1
The cases were consolidated on appeal in order to share transcripts and to
permit a single responding brief.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0170-18.
Joseph E. Krakora, Public Defender, attorney for
appellant S.R.C.-B. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Eric R. Foley, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant K.A.C. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Kathleen Ann Gallagher,
Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Ashley L. Davidow, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors J.T.C. and J.M.C. (Cory Hadley
Cassar, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor J.-A.M.C. (Damen John Thiel,
Designated Counsel, on the brief).
PER CURIAM
S.R.C.-B. (Sharon) and K.C. (Kyle) appeal the January 7, 2019 judgment
terminating their parental rights to three children. We affirm the trial court's
order based largely on the reasons expressed in its comprehensive, oral opinion
of the same date.
A-2186-18T3
2
I.
This case involves three of Sharon and Kyle's children: J-A.M.C. (Jane),
born in 2009; J.T.C. (Judy), born in 2010; and J.M.C. (Janet), born in 2011.
Judy and Janet are living in the same resource home; their resource parents wish
to adopt them and are open to the idea of adopting Jane as well. Jane has been
in her current placement in a different home since June 2017. One of her
resource parents has not yet committed to adopt her or to permit contact with
the other children. The children are securely bonded to each other and only
insecurely attached to adults. The alternative plan for the children is select home
adoption.
The children have been in placement with resource families for the past
seven and one-half years. Janet has been under the care, custody and supervision
of the Division of Child Protection and Permanency (the Division) since birth.
In June 2011, the police responded to a welfare check that children had
been left alone. The Division's investigation revealed that neither the children
nor the apartment were clean. Kyle appeared to be under the influence. He was
no longer taking his medication for schizophrenia. He was not working. Sharon
was not truthful with the caseworker about who had been left to supervise the
children. She was aware of Kyle's mental health condition and that he was not
A-2186-18T3
3
taking medication. The children were removed on an emergency basis and
placed with the Division.
The family was known to the Division. As early as 2007, the Division
investigated claims that Sharon and Kyle were living with a one-month-old
infant (J.C.) without water, heat or electricity and only a little food. In 2008,
the Division investigated that J.C. was left alone without supervision. In 2010,
the Division received a referral that they spanked J.C. so hard his head hit a wall
and were homeless. The allegations of physical abuse were unfounded.
A psychiatric examination of Kyle in July 2011, shortly after the children
were removed, concluded he suffered from schizoaffective disorder and
cannabis abuse. It was recommended he attend a Mental Illness, Chemical
Addiction (MICA) program and receive medication monitoring services.
Sharon participated in a substance abuse evaluation, was referred for
intensive outpatient treatment but then was discharged from the program for
non-compliance. She was referred to another outpatient program in 2012, but
even after that her urine screens in court were positive for marijuana.
In September 2011, Kyle threatened to shoot up the Division offices while
the children were present. After he was released from jail for this, he
A-2186-18T3
4
participated for a short time in programs for medication management, because
he had not been consistent in taking his medication, but he stopped attending.
On appeal, neither parent challenges the findings by the trial court that the
third prong of the statutory test—N.J.S.A. 30:4C-15.1(a)—was shown by clear
and convincing evidence for both Sharon and Kyle. Thus, there is no argument
the services provided by the Division were adequate and that other options for
placement were explored.
The children were the subject of an earlier termination of parental rights
case. In July 2013, a judgment was entered terminating Sharon and Kyle's
parental rights to the three children involved here and to J.C. Defendants
appealed. While that was pending, the Division learned that one of the children
was sexually abused by the pre-adoptive resource parents' child. Sharon's
motion to vacate the guardianship was granted, the case was returned to the trial
court, continued under a different type of docket number, and the guardianship
case was dismissed. After unsuccessful efforts to place all the children with the
paternal grandmother and to reunify the girls with Sharon, the Division filed
another complaint for termination of parental rights. Kyle and Sharon made an
identified surrender of J.C. to the paternal grandmother, who adopted him. She
was not able to adopt the other children. This case was tried before the Family
A-2186-18T3
5
Part in November and December 2018, resulting in a judgment terminating
Sharon's and Kyle's parental rights to Jane, Judy and Janet.
The Family Part judge described the issues.
Noncompliance with services recommended by
professionals. Inconsistent, late, not pre-confirmed
visits continuing to date, conduct at visits shows lack
of parenting authority, control over emotions, lack of
attunement to children's needs to date. Clear indication
the parents didn't engage and learn from parenting skills
programs offered all these years. Unstable housing.
Unstable independent housing. Lack of a viable plan
for the children for reunification. No realistic plan.
There was ample support in the record for all these conclusions. A
psychological evaluation of Sharon in 2011 recommended individual
counselling, anger management, a substance abuse evaluation and parenting
classes. She was to obtain stable housing and her GED. A subsequent parenting
capacity evaluation required both parents to attend a parenting program.
Although Sharon completed a substance abuse evaluation and treatment, she
continued to test positive for illegal substances. She was discharged from
individual therapy. She obtained housing assistance, but left that, moving in
with a friend in Somerset County in 2012, but did not add her name to the
Section Eight housing voucher until October 2018. The children's names were
never added.
A-2186-18T3
6
A cognitive evaluation of Sharon concluded she needed "Parent-Child"
Interactive Therapy (PCIT), which was "hands-on parenting." She was provided
that service but was discharged for non-compliance.
An updated psychological evaluation recommended the same types of
services for Sharon: a substance abuse evaluation, individual counseling, stable
housing, employment, parenting skills training, and supervised, therapeutic
visitation with the children. She attended the therapeutic visitation for nine
months. In 2016, she attended another parenting program and was discharged
for nonattendance.
In early 2018, Sharon was referred to another counselor, who provided
Sharon with individual counseling and then supervised visitation in order to give
her "real time feedback." Although Sharon attended, she characteristically was
late for the one-on-one portion of the program and then needed time to "cool
down and blow off some steam" which shortened her individual sessions. The
counselor reported Sharon continued to need additional "parenting guidance."
She did not complete an individual counselling program and was discharged in
September 2018. She obtained employment at a restaurant in June 2018 and
because of the hours, could not complete her GED.
A-2186-18T3
7
Kyle's psychological evaluation indicated he needed medication
management and substance abuse treatment. He did not have housing or a job.
At one point, he was living in a tent near his mother's apartment. Kyle was
discharged from two different psychiatric treatments. He tested positive for
THC and also was discharged from a MICA program for non-compliance. He
was imprisoned from 2014 to 2016. Once released, he had substance abuse
treatment but was discharged due to repeated absences and was hospitalized on
occasion for psychiatric crises.
By 2018, Kyle was ordered to attend individual counselling, participate in
medication monitoring and have parenting training. He only briefly attended
the parenting training and did not attend counseling. He would not sign releases
for the Division to obtain his medical records.
Dr. Linda Jeffrey conducted psychological and bonding evaluations of the
family. She testified Sharon was "egocentric and self-absorbed" causing her to
lack insight about her behaviors. Dr. Jeffrey concluded Sharon did not have the
capacity to be a responsible and self-sustaining parent. Sharon "was not
prepared to provide a minimal level of safe parenting for her children[,]" and
had "characterological problems" that were "enduring" meaning "there is much
less likelihood of an individual being able to change in terms of these
A-2186-18T3
8
deep[-]seated problems." She opined the children would not be safe if returned
to Sharon.
Dr. Jeffrey testified the children had an "insecure attachment" to Sharon,
meaning they did not rely on her as a person who would protect them, but they
did recognize her as their mother.
Dr. Jeffrey concluded from her psychological evaluation of Kyle that he
suffered from a number of mental health issues including "schizophrenia,
adjustment disorder . . . . Other specified personality disorder, a mixed
personality disorder with narcissistic, paranoid, and dependent personality
disorder features." She opined the children would not be able to rely on him as
a caregiver because he could not provide safe parenting for the children.
Her bonding evaluation concluded the children had an "ambivalent
insecure attachment" to Kyle, meaning they had "ambivalent feeling toward the
attachment figure" signifying there were "feelings of warmth and affection" and
also "feelings of alienation and mistrust." In her view, an insecure attachment
was harmful to the children, negatively affecting their ability to form long-term
attachments to others.
Dr. Roberta DiHoff testified for the Law Guardian. She also conducted a
bonding evaluation, concluding that the children she interviewed (Janet and
A-2186-18T3
9
Judy) had an insecure attachment to their parents and the resource parents, but
a secure attachment to each other.
The trial judge heard testimony from the case worker, adoption specialist
and from Sharon and Kyle. The court interviewed the children in camera where
they expressed their desire to live with their mother, and if not, to remain in their
respective resource homes. The children did not say that they wanted to live
with Kyle.
The trial court concluded the Division satisfied each prong under N.J.S.A.
30:4C-15.1(a) by clear and convincing evidence. The court found it was not
safe to return the children, that Sharon and Kyle had not complied with services,
had not acquired sufficient parenting skills, despite the services provided, and
lacked parental authority over the children. The court found, with respect to the
second prong, that Sharon and Kyle had no viable plan for the children after
seven years, could not provide safe and effective parenting for the children and
could not do so in the foreseeable future. For prong three, which is not
challenged on appeal, the court found the Division made "reasonable efforts to
provide services to the parents to help them rectify the problems that led to the
removal" and detailed those efforts. With respect to prong four, the court found
termination would not do more harm than good. Both experts found that the
A-2186-18T3
10
parents could not safely parent the children, and the children had an insecure
attachment to their parents. Delaying a permanent placement for the children
would harm them. Nothing in the record supported the children being seriously
harmed by severing the parental ties. Termination of parental rights, in contrast,
would allow them the ability for permanency. Therefore, taking into
consideration the Division's plans for adoption the court found the Division
satisfied its burden of showing that "termination of parental rights will not do
more harm than good." The court denied defendants' motion for continued
visitation pending appeal.
On appeal, Kyle argues:
THE TRIAL COURT ERRED IN HOLDING THAT
DCPP PROVED PRONGS ONE AND FOUR OF THE
BEST INTEREST TEST PURSUANT TO N.J.S.A.
30:4C-15.1(a) BY CLEAR AND CONVINCING
EVIDENCE; THUS, THE JUDGMENT
TERMINATING KYLE’S PARENTAL RIGHTS
SHOULD BE REVERSED.
A. The judgment terminating Kyle’s parental rights
should be reversed because DCPP failed to prove by
clear and convincing evidence that termination of
Kyle’s parental rights will not do more harm than good.
B. The judgment terminating Kyle’s parental rights
should be reversed because DCPP failed to prove by
clear and convincing evidence that his daughters'
A-2186-18T3
11
safety, health or development has been or will continue
to be endangered by their relationship with Kyle.
On appeal, Sharon argues:
THE JUDGMENT OF GUARDIANSHIP SHOULD
BE REVERSED BECAUSE THE COURT
MISAPPLIED THE LAW IN FINDING THAT DCPP
MET ITS BURDEN OF PROOF UNDER THE
SECOND AND FOURTH PRONGS OF THE "BEST
INTEREST" STANDARD PURSUANT TO N.J.S.A.
30:4C-15.1.
A. The trial court misapplied the prevailing legal
standards under the fourth prong of the "best interest"
standard where: the prospects for adoption are
speculative at best; the children will be harmed by their
likely separation; and because the children prefer to be
reunified with S.C-.B.
B. The trial court misapplied the prevailing legal
standards under the second prong of the "best interest"
standard and where the court determined that S.C.-B.
was unwilling to remedy the harm to the children.
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;
A-2186-18T3
12
(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 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).
A-2186-18T3
13
A.
Kyle argues the trial court erred when it found clear and convincing
evidence that prong one of N.J.S.A. 30:4C-15(a) was satisfied and that his
relationship with his daughters endangered or would endanger their safety,
health or development. He argues he wants to maintain contact with them even
if he is not the primary parent. However, there was substantial credible evidence
to support the trial court's finding under this prong.
This prong focuses "on the effect of harms arising from the parent-child
relationship over time on the child's health and development." In re
Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The harm "must be one that
threatens the child's health and will likely have continuing deleterious effects on
the child." Id. at 352.
There is no question that "a psychiatric disability can render a parent
incapable of caring for his or her children." N.J. Div. of Youth & Family Servs.
v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008). This is so even if parents
are otherwise "morally blameless." N.J. Div. of Youth & Family Servs. v. A.G.,
344 N.J. Super. 418, 438 (App. Div. 2001).
The record supported the finding that Kyle posed a threat of harm to the
children. His mental health conditions remained largely untreated because of
A-2186-18T3
14
his failure to take medication, or participate in medication monitoring or mental
health services until he was in crisis. He demonstrated long-term lack of housing
and employment, rendering him unable to provide safely for the children. He
demonstrated an inability to control his emotions—at one point threatening, in
front of the children, to shoot up the Division office. Although he wanted to
remain in contact with the children, even if he was not the primary caretaker,
this would not allow the children to obtain a permanent, stable relationship with
an adoptive family, which would then further harm the children.
B.
Sharon argues the trial court erred when it found clear and convincing
evidence that prong two of N.J.S.A. 30:4C-15(a) was satisfied and that she was
unwilling or unable to remedy the harm that her relationship caused the children.
She claims she secured employment, stable housing, visited her children and did
not abuse drugs.
Under prong two, the Division must show a parent is unable or unwilling
to correct the circumstances that led to the Division's involvement. K.H.O., 161
N.J. at 348-49. "The question is whether the parent can become fit in time to
meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417
N.J. Super. 228, 244 (App. Div. 2010).
A-2186-18T3
15
The record supported the trial court's finding that this prong was satisfied.
After the first termination of rights order was vacated, Sharon did not complete
parenting classes, was frequently late to counselling sessions and continued to
need guidance in the supervised parenting sessions. She considered the
individual counseling she received to be of little benefit. Sharon went years
without getting her name added to the section eight housing voucher where she
lived and never added the children's names. Although employed, she had not
considered the school schedule of the three children or that she might have to
pay for child care. She did not have unsupervised visitation with the children
for over seven years because it was never recommended. She did not rebut the
testimony of the expert witnesses that she could not safely parent the children
and would not be able to do so in the foreseeable future despite the provision of
multiple services.
C.
Sharon and Kyle contend the trial court erred by finding termination of
their parental rights would not do more harm than good. Although the children's
current resource homes were willing to adopt, the Division was also pursuing
select home adoption as an alternative plan in the event their current placements
did not work out. Sharon and Kyle assert there should not be termination
A-2186-18T3
16
because there is no assurance the children will be adopted, and separation would
cause more harm.
In evaluating prong four, the trial court must balance the children's
relationships with their birth and resource parents and determine whether they
will suffer greater harm from the termination of ties with the former than with
the latter. In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002) (citing K.H.O.,
161 N.J. at 355). Prong four does not require that "no harm will befall the child
as a result of the severing of biological ties." K.H.O., 161 N.J. at 355. A court
must consider "the child's age, her overall health and development, and the
realistic likelihood that the [natural] parent will be capable of caring for the child
in the near future." Id. at 357.
We agree there was substantial evidence to support the trial court's finding
that neither defendant would be able to safely care for their children in the
foreseeable future. Neither party gained meaningful insight into the problems
that resulted in their removal or how to address the issues. It was not rebutted
that the children's attachment to their parents was insecure and that delay in
permanency would continue to harm the children. Termination of parental rights
was a step toward permanency. In these circumstances, the trial court had ample
support for its determination that the children's continued status without
A-2186-18T3
17
permanency with an insecure attachment to their parents was more harmful than
the termination of parental rights that would allow for their adoption.
Affirmed.
A-2186-18T3
18