DIVISION OF YOUTH AND FAMILY SERVICES v. K.A.C. and P.E.C., JR IN THE MATTER OF THE GUARDIANSHIP OF K.G.C. and D.A.C Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5024-09T2

A-5535-09T2

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.A.C. and P.E.C., JR.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.G.C. and D.A.C.,

Minors.

___________________________________

December 19, 2011

Submitted September 28, 2011 - Decided

Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-61-10.

Joseph E. Krakora, Public Defender, attorney for appellant K.A.C. (Cary L. Winslow, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant P.E.C., Jr. (Beryl Foster-Andres, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for K.G.C. and D.A.C., minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

These consolidated appeals concern two guardianship matters that were resolved in a single trial. Defendants, K.A.C. and P.E.C., Jr. ("P.E.C."), appeal from the Family Part order, entered by Judge Figarotta, terminating their parental rights to two of their three children, Carla, born July 12, 2003, and Casey, born October 3, 2005,1 and granting guardianship to the Division of Youth and Family Services ("Division"). We affirm.

The evidence presented at the two-day trial conducted in June 2010 was as follows. In addition to the three children K.A.C. and P.E.C. have together, K.A.C. has a fourth child, her oldest child, from another relationship. The Division first became involved with defendants in 1988 based upon reports of unsanitary conditions in their home, and it responded to subsequent referrals ranging from complaints of lack of supervision over the children to a claim that defendants smoked crack and marijuana in the presence of their children. Defendants also were unable to maintain stable living arrangements, losing one apartment and moving into welfare housing when their utilities were shut off for non-payment. Prior to removing the children from their custody, the court placed defendants under the supervision of the Division. The supervision required that defendants attend substance abuse evaluations. Although they initially failed to undergo the evaluation, they attended an evaluation in March 2007 and tested positive for drugs. They were directed to participate in outpatient treatment, but they failed to do so and continued to test positive for drugs throughout 2007.

The court entered an order awarding the Division custody of Carla and Casey in early 2008, and the girls were placed into a foster home on February 14, 2008, where they continued to remain at the time of trial. Between March and July 2008, defendants attended drug treatment sessions. By June, P.E.C. tested negative and was deemed drug free and without a marijuana dependency. Defendants underwent a psychological evaluation in September 2008, during which they both acknowledged they used marijuana often until their daughters were removed from their custody. P.E.C. was diagnosed as suffering from polysubstance abuse and personality disorder, not otherwise specified ("NOS"), with narcissistic and antisocial features. K.A.C. was also diagnosed with personality disorder, NOS, as well as suffering from substance abuse and a substance-induced anxiety disorder. Notwithstanding their attendance at drug treatment programs and P.E.C.'s negative drug screens during the summer of 2008, both parents tested positive for marijuana in early February 2009 and, on multiple occasions, failed to attend the drug treatment sessions. After the court approved the Division's permanency plan of terminating their parental rights, defendants resumed regular attendance at the drug treatment programs throughout the summer of 2009, but they continued to test positive for narcotics.

After the Division placed Carla and Casey in a foster home, defendants attended weekly supervised visitation with their daughters until those visits were suspended for one month when defendants tested positive for narcotics. They resumed visitation with the girls in August 2009.

Dr. Karen Wells, a psychologist, conducted a psychological evaluation of the parents and performed bonding evaluations of the children with their parents and with the foster family with whom the children had been living for more than two years at the time of trial. In these evaluations, defendants acknowledged their long history of abusing drugs and neglect of their children. Dr. Wells opined that K.A.C., however, "minimized the difficulties she had experienced in [the] parenting of her children or failed to accurately recall her more than twenty[-]year history of involvement with the Division . . . ." Dr. Wells, who testified at the termination hearing, expressed her concerns about defendants' ability to provide the necessary structure and care for their children. She doubted whether they "would ensure the children's educational needs" should they regain custody of the girls.

On the other hand, based upon the bonding evaluation she conducted between the girls and their foster parents, Dr. Wells expressed the view that "[t]he girls look to [their foster parents] as their psychological parents, specifically persons who provide their basic needs (food, shelter, and clothing) as well as nurturance, care, stability, and a sense of security and belonging."

K.A.C. testified that she was unemployed, had never completed high school, and that P.E.C. was her sole source of income through his Social Security. They also received food stamps and public assistance for utility payments. Although she claimed that she stopped using marijuana in April 2009, she nonetheless tested positive for marijuana in July 2009. In P.E.C.'s testimony, he admitted he continued to use drugs after his daughters were placed in foster care.

At the conclusion of the trial, Judge Figarotta issued an oral opinion in which he concluded the Division had satisfied, by clear and convincing evidence, the requisite statutory prongs for determining whether termination was in the best interests of the children. The present appeal followed.

On appeal, K.A.C. raises the following point for our consideration.

PLAINTIFF FAILED TO ESTABLISH[,] WITH CLEAR AND CONVINCING EVIDENCE[,] ALL FOUR OF THE ELEMENTS UNDER N.J.S.A. 30:4C-15.1(A) REQUIRED FOR THE TERMINATION OF PARENTAL RIGHTS.

P.E.C. raises the following additional points for our consideration:

POINT I

THE DIVISION HAS FAILED TO ESTABLISH THAT TERMINATION OF P.E.C.'S PARENTAL RIGHTS IS IN THE BEST INTEREST[S] OF HIS CHILDREN BECAUSE P.E.C. IS A CAPABLE FATHER WHO HAS COMPLETED DRUG TREATMENT AND PARENTING CLASSES, REMAINED SOBER FOR NEARLY A YEAR PRIOR TO TRIAL, HAS SUITABLE AND STABLE HOUSING AND SUFFICIENT RESOURCES TO PROVIDE FOR HIS FAMILY, AND HAS MAINTAINED AN ENDURING BOND WITH HIS CHILDREN DESPITE INADEQUATE VISITATION[,] AND [CARLA] HAS CONSISTENTLY EXPRESSED HER STRONG DESIRE TO REUNITE WITH HER FATHER.

A. P.E.C. ACKNOWLEDGES THAT HIS DRUG USE LED TO HIS CHILDREN'S REMOVAL AND CONCEDES THE FIRST PRONG OF THE BEST INTERESTS TEST; HOWEVER, P.E.C. HAS NEVER DIRECTLY OR INTENTIONALLY HARMED HIS CHILDREN.

B. P.E.C. HAS REMOVED THE HARM FACING HIS CHILDREN BY EARNESTLY ACKNOWLEDGING THAT HE HAS A DRUG PROBLEM, COMPLETING A DRUG TREATMENT PROGRAM, MAINTAINING HIS SOBRIETY FOR ELEVEN MONTHS LEADING UP TO TRIAL, COMPLETING PARENTING TRAINING, AND MAINTAINING STABLE HOUSING[.] NO EVIDENCE HAS BEEN PRESENTED SHOWING THAT HIS PRESCRIPTION DRUG USE [A]FFECTS HIS ABILITY TO PARENT IN ANY COGNIZABLE MANNER.

C. THE DIVISION HAS FAILED TO SATISFY THE THIRD PRONG OF THE BEST INTERESTS TEST BECAUSE P.E.C. WAS NOT PROVIDED WITH ADEQUATE VISITATION.

D. THE DIVISION HAS FAILED TO PROVE THAT TERMINATION WILL NOT DO MORE HARM THAN GOOD BECAUSE P.E.C. IS A LOVING FATHER WHO IS READY FOR REUNIFICATION AND SHARES A STRONG BOND WITH HIS DAUGHTERS, AND [CARLA] CLEARLY PREFERS TO REUNITE WITH HER PARENTS AND SIBLINGS.

Parents have a fundamental right to raise their children under the Constitution. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is mitigated by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard first enunciated by the Court in A.W. and now codified in N.J.S.A. 30:4C-15.1a.

N.J.S.A. 30:4C-15.1a provides that termination of parental rights is in the best interests of the child when:

(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.

The Division has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

Although acknowledging his ongoing drug abuse, P.E.C. urges, as to the first prong, that his actions "have not reached the level of condemnation reserved for parents engaged in acts such as physical or sexual abuse." The absence of physical or sexual abuse, however, is not dispositive. A.W., supra, 103 N.J. at 605 (quoting R. G. & F., supra, 155 N.J. Super. at 194). The court's inquiry in initially determining whether a child's safety, health or development has been or will continue to be endangered by the parental relationship (the first prong) focuses upon the effect, over time, upon a child's health and development as a result of the parents' conduct. K.H.O., supra, 161 N.J. at 348.

The record before the court clearly and convincingly established both parents' long history of substance abuse and neglect, not only as to Carla and Casey, but with respect to the older children as well. For example, defendants permitted their oldest child to miss forty days of school during one school year, and they allowed him to smoke marijuana with them. A parent's past conduct related to other children is probative of the parent's future conduct as a parent. See J. v. M., 157 N.J. Super. 478, 493 (App. Div.) (addressing parents' treatment of other children, and noting that a court may rely on past conduct when trying to predict future conduct), certif. denied, 77 N.J. 490 (1978).

Turning to the second prong, while both parents eventually underwent and completed drug treatment programs, neither parent participated in the necessary after-care programs with any measurable success. Both also continued to test positive for drugs throughout the course of the Division's custody of the girls and their placement in foster care. Thus, there was substantial, credible evidence in the record which clearly and convincingly demonstrated defendants' unwillingness or inability to eliminate the harm that resulted in the removal of the girls from their custody, and they were unwilling or unable to undertake the necessary steps, on a sustained basis, to provide a safe and stable home for the girls.

At the same time, however, the foster parents were developing and maintaining a parent-child bond with the girls. Although Carla had expressed a desire to return to her biological parents eighteen months prior to the trial, by the time of the trial, both she and Casey had expressed a preference to remain with their foster parents. Hence, the evidence also clearly and convincingly established that separating the girls from their foster parents would "cause serious and enduring emotional or psychological harm" to the girls. N.J.S.A. 30:4C-15.1(a)(2).

The record is also replete with evidence of the reasonable efforts the Division undertook to assist defendants in correcting the problems that led to the girls' placement outside of their parents' home, thus satisfying the third prong of the "best interests" test. These services included regularly encouraging visitation between the children and their parents, as well as providing transportation for those visits throughout the period of the girls' placement outside of the home. In addition, the Division offered parenting services and drug treatment services. Defendants failed to consistently avail themselves of these services.

Finally, addressing the fourth prong, that "[t]ermination of parental rights will not do more harm than good," N.J.S.A. 30:4C-15.1(4), Judge Figarotta recognized that no matter what he decided, the children would be harmed in some fashion because one of the sets of parents would no longer regularly see the girls. Satisfaction of the fourth prong does not require that no harm be found. See K.H.O., supra, 161 N.J. at 355 (holding that "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties"). "The question to be addressed under that prong 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 the permanent disruption of [their] relationship with [their] foster parents." Ibid.

In that regard, Judge Figarotta considered that Casey, the youngest child, had spent more than half of her life living with her foster parents, Dr. Wells believed the foster parents had a stronger bond with the girls than P.E.C. and K.A.C., and the foster parents were better equipped to handle the trauma the girls may suffer as a result of termination of defendants' parental rights. Additionally, the judge explored the option of waiting to make a decision for up to one year to give defendants an opportunity once again to show further improvements in their lifestyles. He noted, however, that it would simply traumatize the children much more to be taken from their foster parents after spending more time with them and developing an even stronger bond. He therefore ruled that the fourth prong of the best interests test was satisfied because harm to the children was inevitable and the foster parents would provide more stability and better care for the children.

In short, because the Division satisfied, by clear and convincing evidence, all four prongs of the best interests test, N.J.S.A. 30:4C-15.1a, there is no basis in the record to disturb the judgment entered.

Affirmed.

1 Carla and Casey are fictitious names for K.G.C. and D.A.C., respectively.