NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.C. and K.S.

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1800-09T4

A-1801-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

P.C. and K.S., a/k/a A.S.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.S., III and K.S.,

Minors.

_________________________________

October 13, 2010

 

Argued September 27, 2010 - Decided

 

Before Judges Reisner, Sabatino and Alvarez.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-157-09.

 

Catherine Reid, Designated Counsel, argued the cause for appellant P.C. in A-1800-09 and Carleen M. Steward, Designated Counsel, argued the cause for appellant K.S. a/k/a A.S. in A-1801-09 (Yvonne Smith Segars, Public Defender, attorney; Ms. Reid and Ms. Steward, on the briefs).

 

Joyce Calefati Booth, Deputy Attorney General argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Booth, on the brief).

 

Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for the minors A.S., III and K.S. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).

 

PER CURIAM

 

Defendants P.C. (mother) and K.S. (father)1 appeal from a November 6, 2009 order of the Family Part terminating their parental rights to their two children, A.S. III and K.S., Jr. We have consolidated these appeals for purposes of this opinion and we now affirm.

I

The essential facts were set forth at length in Judge Mark J. Nelson's thorough written opinion dated November 6, 2009, and need not be repeated here in the same detail. In brief, both parents have serious and persistent substance abuse problems. Their substances of choice include heroin, cocaine and large amounts of alcohol. In 2000, the older child, A.S. III, was born with cocaine and amphetamines in his system. The Division of Youth and Family Services (DYFS) obtained custody of the child and placed him with his paternal grandmother.2 A.S. III was returned to his parents' custody, but DYFS intervened again in 2007 due to the parents' drug use and placed A.S. III with his paternal grandmother, W.S. In October 2008, the younger child, K.S., Jr., was born with alcohol and opiates in his system and suffered withdrawal symptoms. He was hospitalized for several weeks after birth and was thereafter placed in a foster home.

Despite efforts throughout 2008 and 2009 to provide the parents with drug treatment, they either did not attend or did not cooperate with the treatment offered to them. The trial judge found that DYFS made "extraordinary efforts" to help the parents, but they refused to cooperate and "continued to deny . . . that substance abuse was a problem" or that it "affected their ability to act as parents and to provide a safe and stable home for the children." The record amply supports those findings.

At the guardianship trial, the State presented testimony from a psychologist, Dr. Allison Winston, who had evaluated each parent three times. The first evaluation was in March 2008, shortly after they lost custody of A.S. III. At that time, Dr. Winston recommended that both parents undergo drug treatment as well as anger management and parenting education.

The second evaluation was on November 13, 2008, shortly after P.C. gave birth to K.S., Jr. During the evaluation, P.C. admitted to Dr. Winston that, despite going through substance abuse treatment, she used alcohol during her pregnancy, even though she knew she was pregnant, and that she tested positive for opiates when the baby was born. Hospital employees reported that the father appeared intoxicated when he was at the hospital for the baby's birth. K.S. denied being drunk, but admitted to Dr. Winston that he had been drinking that day.3 At the time Dr. Winston evaluated the parents in November, K.S. still had not attended substance abuse treatment or anger management classes, and P.C. had relapsed into drug and alcohol use. Hence, Dr. Winston concluded that neither parent was ready to care for their children.

Dr. Winston evaluated the parents a third time in July and August 2009. At that time, both parents admitted to her that they were still using alcohol and drugs, although they sought to minimize the extent of their problems. K.S. admitted that he was "still drinking pretty regularly" and that "he was still taking Percocets" although he "didn't necessarily have a prescription for it." He also had no insight into the harm his addiction could pose to his children or his need to obtain treatment.

P.C. had "relapsed again recently" and admitted to Dr. Winston "that she had been still . . . drinking alcohol pretty . . . frequently." She had not attended the psychotherapy Dr. Winston had recommended. She also had no relapse prevention plan and did not regularly attend a support group such as Alcoholics Anonymous or Narcotics Anonymous. Dr. Winston concluded that neither K.S. nor P.C. was able to safely parent the children and they would not be able to act as parents in the foreseeable future due to their persistent substance abuse problems.

Dr. Winston conducted bonding evaluations between the children and their parents, and also between the children and their maternal aunt, S.T., who was a potential adoptive parent. Dr. Winston concluded that the older child had a strong attachment to both of his parents, and the younger child had a strong attachment to his mother. However, she found that both children had "a strong attachment with their aunt."

Dr. Winston opined that K.S., Jr., who had never lived with his parents, would suffer no lasting psychological harm if their parental rights were terminated, as long as he could be placed with supportive foster parents. She opined that A.S. III would experience "some trauma" if "his relationship with his parents is totally cut off." However, she opined that he could recover if placed with supportive foster parents. Dr. Winston opined that A.S. III had an especially good chance of avoiding any permanent harm if placed with his aunt, who has a positive, ongoing relationship with his mother. Dr. Winston also testified to the paramount importance to both children of permanency and stability in their lives and the emotional damage that could result from longstanding uncertainty about their living arrangements. She opined that permanency was more important to the children than maintaining a relationship with their biological parents.

DYFS also presented testimony from case worker Jeffrey Gutierrez, who outlined his repeated efforts to provide both parents with drug treatment programs. He testified that neither parent complied with substance abuse treatment. He also testified that the parents were sporadic in visiting the children and that they had not visited the children at all for the past several months. According to Gutierrez, when the parents did attend the visits, they looked "like they were either under the influence or high" and would refuse his request that they take random drug tests. Further, the parents had recently refused to allow Gutierrez to visit their apartment.

On the other hand, the aunt, S.T., visited the children every week and expressed an interest in adopting them. At our direction, DYFS supplemented the record with a certification attesting that S.T. has now been licensed as an adoptive parent and therefore is qualified to adopt the children. The children have been living with the aunt since October 2009.

Neither parent testified at the hearing. On September 22, 2009, the first hearing day, both parents failed to take a drug screening test, despite the trial judge's instruction that they do so that day. Both parents appeared late for court that day, as well as the next hearing day. The judge further noted that K.S. had appeared visibly intoxicated at an earlier hearing. At the end of the September 24 hearing, P.C. attempted to make an identified surrender of the children to the aunt, S.T. However, the judge refused to accept the identified surrender because P.C. testified that DYFS and the court were coercing her into making the surrender. Therefore, the judge rendered a decision on the merits of the guardianship action as to both parents.

Based on the entire record, the judge concluded that both parents had a complete lack of insight into their drug and alcohol problems, finding that "the parents are either unwilling or somehow unable to even admit the problem and begin to address this situation." Judge Nelson credited Dr. Winston's testimony in its entirety. He accepted her opinion, based on her repeated evaluations of the parents, that their substance abuse and failure to complete treatment put the children at risk of harm and rendered them unable to provide the children with a safe and stable home. He also credited Dr. Winston's testimony that termination of parental rights was essential to the children's emotional well-being and would not do more harm than good. Applying the best interests test set forth in N.J.S.A. 30:4C-15.1a, the judge found by clear and convincing evidence that termination of defendants' parental rights was in the children's best interests.

II

On this appeal, our review of Judge Nelson's decision is limited. We must defer to the trial judge's factual determinations so long as they are "'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Further, we owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super.81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 190 N.J. 257 (2007). Judged by those standards, we find no basis to disturb Judge Nelson's decision, and we affirm substantially for the reasons stated in his cogent opinion. We add the following comments.

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). "That fundamental parental right, however, is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) 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. 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.

 

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (noting codification). In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

On this appeal, K.S. argues that his trial counsel rendered ineffective assistance by failing to call K.S. as a trial witness and by failing to "raise the issue of Kinship Legal Guardianship (KLG) as an alternative to adoption." He also contends that DYFS should have offered either the aunt or the paternal grandmother the option of KLG as an alternative to termination of parental rights and adoption. Finally, he contends that DYFS did not satisfy the four-prong best interests standard. Based on our review of the record, we conclude that these contentions are without merit and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We first address the ineffective assistance and KLG issues. Because K.S. did not raise the KLG issue in the trial court, there is no record as to whether DYFS advised the aunt or the grandmother that KLG was an option.4 Nor did the trial judge have an opportunity to address the issue. Ordinarily, we will not address on appeal an issue that was not raised in the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In an effort to circumvent that rule, K.S. accuses his trial counsel of ineffective assistance for failing to raise the KLG issue. We reject that attempt, as well as his claim that his counsel should have called him as a witness.

In a guardianship appeal, a claim of ineffective assistance of counsel must be supported with specific legal arguments and, in appropriate circumstances, with a certification or other legally competent evidence:

[A]ppellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

 

[N.J. Div. Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).]

 

Here, K.S. produced no evidence that either the grandmother (his mother) or the aunt were not told about KLG or that either one of them would have been willing to undertake KLG. Moreover, even if trial counsel had raised the KLG issue, it would have been without merit, because the aunt was willing to adopt the children.5 "[W]hen the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). Therefore, the KLG argument would have failed at the trial level, and K.S.'s trial counsel was not ineffective for failing to raise it.6 Moreover, K.S. did not supply a certification attesting to what he would have testified had he been called as a witness. Consequently, he did not present a prima facie case of ineffective assistance of counsel as to that claim either. See B.R., supra, 192 N.J. at 311.

In her appeal, P.C. contends that her use of drugs did not hurt her children and did not constitute a legitimate basis to terminate her parental rights. She also blames DYFS for her failure to obtain drug treatment. She further contends that the trial court's negative findings about K.S. unfairly influenced the court's evaluation of P.C.'s parenting ability. She also argues that DYFS did not prove that termination of her parental rights, in favor of adoption by the aunt, would not do more harm than good. We find no merit in any of these arguments. R. 2:11-3(e)(1)(E).

P.C.'s factual contentions are not supported by the record. Her DYFS case workers made diligent, repeated efforts to get her into drug treatment programs. She was either unwilling or unable to take advantage of the opportunities offered to her.

Like K.S., P.C. inaccurately minimizes both her substance abuse problem and its impact on the children. Contrary to her contentions, she harmed K.S., Jr. by ingesting drugs and alcohol while she was pregnant with him, leading to his being born with withdrawal symptoms and spending six weeks in the hospital after his birth. She thereafter continued taking drugs and drinking, thus depriving both of her children of a stable and permanent home. As the Supreme Court recognized in P.P., supra, 180 N.J. at 512, parents who persist in substance abuse do harm their children, and ongoing substance abuse can be a legitimate basis to terminate parental rights. Even at the time of the guardianship trial, neither defendant was capable of parenting these children. The children are entitled to a safe, stable and permanent home, which defendants cannot provide.

In summary, Judge Nelson's factual findings concerning P.C. and K.S. are supported by substantial credible evidence. See Cesare, supra, 154 N.J. at 412. Based on those findings, he correctly concluded that termination of both parents' parental rights is in the children's best interests. Finally, while the record supports a finding that adoption by an unrelated foster parent would not do more harm than good, as Dr. Winston testified, these children are likely to have an even more favorable outcome because their aunt will adopt them.

Affirmed.

 

1 K.S. is also known as A.S., but at oral argument his counsel clarified that his correct initials are K.S. Because the younger child's initials are also K.S., we will refer to that child as K.S., Jr.

2 K.S. was incarcerated when A.S. III was born.

3 The DYFS caseworker who visited the parents at the hospital shortly after the birth of K.S., Jr. reported that both parents smelled of alcohol, the mother was incoherent, and the father admitted to drinking a pint of whiskey that day. He also told the case worker that he and P.C. were homeless.

4 At oral argument, the DYFS attorney advised us that the agency gives potential adoptive parents a standard form that discusses both KLG and adoption and the difference between the two.

5 Neither P.C. nor K.S. disputes that the aunt intends to adopt the children. Although the record contains no certification or testimony from the aunt as to her willingness to adopt, we can fairly infer that P.C. would not have attempted to surrender her parental rights to the aunt unless she was willing to adopt. Further, the fact that the aunt has now been licensed as an adoptive parent supports the conclusion that she intends to adopt the children.

6 K.S.'s passing contention that the Federal Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, 122 Stat. 3949 (codified as amended in scattered sections of 42 U.S.C.A.) pre-empts our State's KLG Act, does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). K.S. did not even develop this argument by citing a specific section of the Act that purportedly has pre-emptive effect. The fact that the Act provides funding for KLG does not imply a Congressional intent to prefer KLG over adoption.