NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2652-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

 

E.O.,

 

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.R.L.-O.,

A minor.

_____________________________________

December 20, 2012

 

Submitted November 13, 2012 - Decided

 

Before Judges Graves, Espinosa, and Guadagno.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-100-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R.L.-O. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant E.O. (Eric)2 appeals the December 21, 2011 Family Part judgment terminating his parental rights to his daughter A.R.L.-O. (Amy). After careful review of the record and consideration of the arguments of the parties, we conclude that the trial judge's decision is based on substantial credible evidence. Accordingly, we affirm.

I.

Amy was born to Eric and R.L. (Rhonda) on December 18, 2009. Shortly after Amy's birth, she began to display symptoms of drug withdrawal. Rhonda tested positive for benzodiazepine and methadone and subsequently admitted to using heroin, Xanax, Clonazepam and alcohol during her pregnancy.

The Division of Youth and Family Services (DYFS or the Division) was notified and a caseworker visited the home where Eric, Rhonda and Rhonda's children from other relationships lived. The caseworker found the building was abandoned with no heat, electricity or hot water.

DYFS was familiar with these children, having investigated seven prior referrals for abuse and neglect, substantiating six of them. One of allegations involved Eric and was substantiated by the Division in 2009.

On January 8, 2010, DYFS conducted an emergency removal of Rhonda's children, including Amy. On January 11, 2010, Eric and Rhonda appeared at a hearing on the Division's order to show cause. The court granted DYFS custody of all four children, including Amy. In the order, the judge noted that "[Amy] is still in the hospital suffering from withdrawal." Six days later, Rhonda died. Upon Amy's release from the hospital, she was placed into a foster home.

Eric was ordered to submit to a psychological evaluation which revealed that he lacked the physical and emotional resources needed to parent Amy but concluded that with appropriate intervention, he might become a viable parenting option in the future. The evaluator recommended that Eric's visits with Amy be supervised. Eric was referred for drug treatment, individual therapy, treatment for depression and a parenting skills program.

DYFS evaluated Eric's mother as a potential placement for Amy, but ruled her out based on a prior drug conviction. DYFS also evaluated a maternal cousin who initially showed interest in caring for Amy, but later changed her mind.

On May 13, 2010, Eric submitted to a substance abuse evaluation. Eric admitted to a long history of drug abuse and mental health problems. He was diagnosed with schizophrenia at age sixteen and disclosed two recent suicide attempts, once before Rhonda died, in an "attempt to get attention from her," and a second attempt after Rhonda died.

The evaluator recommended an intensive outpatient program. Eric attended a program at Family Connections, but on June 3, 2010, he provided a urine sample which tested positive for cocaine, benzodiazepine, methadone, and opiates. His next twelve urine screens were negative for illicit substances.

At a July 8, 2010 compliance review, Eric was ordered to continue to comply with the recommendations of the substance abuse evaluator and submit to another psychological evaluation. He continued to enjoy supervised visitation with Amy.

On July 23, 2010, Eric tested positive for benzodiazepine, followed by three more positive tests in September 2010. In spite of his continued drug use, he managed to complete a court-ordered parent education program on September 16, 2010.

At a conference on June 22, 2011, the trial judge noted that Eric had made some progress but had not been able to remain clean and sober and could not provide adequate housing for Amy. At the time, Eric was living in a small studio apartment in a senior citizens' complex that did not allow children. DYFS attempted to help Eric find housing where he could live with Amy and he was placed on waiting lists at two complexes.

Eric's compliance began to decline in October 2010. He attended the Strong Fathers Program at Family Connections where he was receiving treatment including drug counseling, individual therapy, parenting classes and medication monitoring. He was expelled from the program due to inconsistent attendance.

He was then referred to the New Directions Behavioral Health Center for substance abuse treatment but refused to attend after learning he would have to submit to two urine screenings per week.

On December 10, 2010, Eric submitted to a hair follicle screening and tested positive for cocaine, benzoylecgonine, norcocaine, and cocaethylene. Eric entered the Meadowlands Hospital Medical Center for several days of inpatient detoxification but he relapsed and tested positive for benzodiazepine on April 13, 2011, and April 19, 2011.

At a permanency hearing on January 10, 2011, the trial court approved the Division's plan of termination of parental rights followed by adoption. The Division filed a guardianship complaint seeking termination of Eric's parental rights on February 15, 2011.

Trial began on July 19, 2011. The Division called Dr. Elaine Weitz, who conducted a psychological evaluation of Eric and bonding evaluations between both Amy and Eric, and Amy and her foster parent at the time. Dr. Weitz testified that Eric received an elevated score on the abuse scale suggesting that "he has personality characteristics that have been found in known physical child abusers." She explained:

[Eric], basically, agreed with items that describe him as being very overwhelmed, depressed, lonely, isolated, worried, angry as well as having high expectations of children. And those constellations of characteristics have been found in individuals who are abusive.

 

Dr. Weitz was concerned with Eric's history of domestic violence, including attacks on Rhonda. She also noted that in 2009, Eric was arrested for assaulting Rhonda's fifteen-year-old son.

Dr. Weitz noted that Amy had special needs and had been diagnosed with global developmental delays and asthma. At the time of trial, Amy was eighteen months old and was assessed as performing at a ten-month-old level. Dr. Weitz concluded that Eric would likely not parent Amy effectively in the near future and the child could be put at a risk of harm if placed with Eric. However, she acknowledged that a "special relationship" had developed between Amy and Eric, and Amy recognized Eric and referred to him as "dada." Dr. Weitz did not view their relationship as rising to the level of a bond because Eric "is not there on a regular basis satisfying [her] basic needs." Dr. Weitz concluded that Amy would not suffer long term harm if Eric's parental rights were terminated because "there is not a true and enduring bond . . . between them," Eric cannot "provide a safe and stable home . . . in the foreseeable future," and "adoption would be the best plan for [Amy]." Dr. Weitz also found that Amy's age and developmental disabilities make it "imperative that she achieve permanency as quickly as possible."

As to Eric's ability to successfully parent Amy, Dr. Weitz testified:

I'm not optimistic about his drug rehabilitation given his history of failed attempts at drug rehab and his inability to remain drug free when he's not in a controlled setting. I am very concerned about his ability to manage his psychiatric symptoms through medication management and even psychotherapy because, again, he's not been consistent in terms of taking medication on a regular basis. The housing situation is really unclear to me. I don t know how long he is remaining or able to remain at the place he's at right now. He is not working, although, has the capacity to be employed. I believe he has worked in the past. And he even acknowledged to me that he might need to supplement his income in some way if he got custody of his child.

 

You know, I do believe he has some of the very basic kind of parenting abilities. He can be nurturing and loving and attentive and playful with the child. But I don t believe that he can sustain that on an ongoing basis, especially given his own very significant psychiatric drug abuse. And even, you know, concerns about his ability to control his behavior when he's feeling overwhelmed and frustrated.

 

Dr. Weitz concluded that Eric could not provide a safe and stable home for Amy at that time or in the foreseeable future.

Eric testified at trial and admitted that the Division provided drug evaluations and treatment; attempted to help him secure housing; and provided parenting classes and visitation with Amy. On cross-examination, Eric testified that he lived in a complex that does not permit children, and while he was trying to find housing that would accommodate Amy, he had not been able to do so. He also acknowledged that he suffered from depression and attempted suicide both before and after Amy's birth. He admitted to an act of domestic violence involving the mother of his other children but minimized his actions: "I did smack her, whatever, you know, and put my hand on her, but it was nothing really serious that she had to go to the hospital and stuff like that."

On the final day of the trial, Eric offered to execute an identified surrender to his maternal uncle, G.T., who resides in Massachusetts. Eric had earlier proposed G.T. as a placement resource and the Division evaluated him. While the Division ultimately approved G.T. and placed Amy with him, they opposed the identified surrender as Eric's parental rights would be restored if G.T. did not adopt Amy and the child's permanency would be further delayed. The trial judge agreed, and would not accept the identified surrender.

At the conclusion of the trial, the judge found the Division met its burden for the termination of Eric's parental rights to Amy. As to prong one of the best interests test, N.J.S.A. 30:4C-15.1, the court found that Eric endangered Amy because he had been unable to remain drug free and had been unable to secure housing. The court noted Eric's history of mental illness, his inability to maintain employment and his criminal record, as well as his history of domestic violence, impulsivity and inability to meaningfully address his issues. The judge concluded that the Division had proven by clear and convincing evidence that Eric presented a risk of harm to Amy.

As to prong two, the court noted that Eric had participated in substance abuse programs yet continued to test positive for drugs and concluded that the Division had established by clear and convincing evidence that Eric presented a continuing harm to the child.

Under prong three, the court found DYFS had made reasonable efforts to provide services to Eric and that alternatives to termination of his parental rights had been considered. DYFS provided visitation; bus cards for transportation; psychological evaluations; parenting classes; referrals for inpatient and outpatient programs; and detoxification programs.

Under prong four, the court relied on Dr. Weitz's testimony in finding that DYFS satisfied its burden to show that termination would not do more harm than good.

On appeal, Eric challenges the Division's proof on all four prongs of the best interests test.

II.

It is well settled that parents possess a fundamental liberty interest in the custody of their children, and this right is protected by both the United States Constitution and the New Jersey Constitution. Meyer v. Louisiana, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). This right is "tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.

Appellate review of "a trial court's termination of parental rights is limited. A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). This standard is deferential. Ibid. An appellate court must "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 also Cesare v. Cesare, 154 N.J. 394, 413 (1998). The decision of the family court should only be overturned if it was "so 'wide of the mark' that . . . intervention is necessary to correct an injustice." F.M. supra, 211 N.J. at 448 (quoting N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

Termination of parental rights under N.J.S.A. 30:4C-15.1(a), requires the Division to prove by clear and convincing evidence:

(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 essential determination must be "whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007).

The first prong of the best interests of the child standard asks whether "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352.

Here, defendant argues that the trial court's findings that (1) Eric is unable to remain drug free; (2) Eric's emotional disorder presents a risk of harm to Amy; (3) Eric's failure to obtain housing in which he could live with Amy; and, (4) Eric's history of domestic violence, do not support a finding that Amy's health and well being will continue to be endangered by the parental relationship. We disagree.

The record provides ample evidence to support the probable harm Amy faces with continued parental contact with Eric. Throughout the litigation, Eric struggled with addiction. His history of mental illness presents a risk of harm to Amy, as attested to by Dr. Weitz's conclusion that Eric could become physically abusive to the child. Eric has attempted suicide on at least two occasions. One of these attempts took place after Rhonda died, at a time when Eric was Amy's only parent. Eric has also been hospitalized for psychiatric issues multiple times. Eric also admitted to a history of domestic violence, lending weight to Dr. Weitz's claim of potential future violence.

The second prong requires a showing by clear and convincing evidence that "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). This prong "may also be demonstrated if the parent has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352. Evidence providing support for prong one will also provide support for prong two. In re Guardianship of DMH, 161 N.J. 365, 378-79 (1999).

Here, the trial court found that "[Eric] has participated in substance abuse programs. He has generally received good reviews from various providers. He has, however, continued to test positive for [drugs] but has not presented requested prescriptions. He has admitted to having several relapses. He still does not have housing or a promise of housing . . . ."

For these reasons, and the reasons listed above under prong one, there is sufficient evidence to support the trial court's finding that prong two was satisfied by clear and convincing evidence.

To satisfy prong three, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[.]" N.J.S.A. 30:4C-15.1(a)(3). The goal of the services should be reunification of the family. DMH, supra, 161 N.J. 390-91. N.J.S.A. 30:4C-15.1(c) describes reasonable efforts:

[A]ttempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, 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;

 

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 

(4) facilitating appropriate visitation.

 

Defendant claims that DYFS "failed to make reasonable efforts to provide services" but during his trial testimony, Eric conceded that DYFS had provided numerous services. He also admitted to relapsing back to drug use as late as March 2011.

"The diligence of DYFS's efforts on behalf of a parent is not measured by their success . . . [and] the parent's failure to become a caretaker for his children is not determinative of the sufficiency of DYFS's efforts at family reunification." DMH, supra, 161 N.J. at 393. We find no support for defendant's argument in the record.

The defendant next argues that the Division's assistance in helping him find housing was inadequate. One of the units Eric was interested in required that he have custody of Amy. Given the lack of progress that Eric was making in addressing his drug abuse and mental health issues, the Division was unable to accurately represent that he would obtain custody of Amy in the near future. The Division did provide a letter, as directed by the court, that provided, "[Eric] has presented himself as a plan for his child and the Division is in the process of assessing him as a plan for the child." This was a true and accurate assessment of Eric's status at the time. Nothing more was required and there was no proof that the efforts of the Division were deficient.

The defendant further objects to the trial court's finding under prong three, claiming that his proposed identified surrender to G.T. constituted an alternative to termination that was rejected. This argument ignores the fact that a surrender, even a conditional one, results in the termination of parental rights. As such, it is not an alternative to termination. In N.J. Div. of Youth and Family Servs. v. D.M.B., 375 N.J. Super. 141 (App. Div. 2005), we discussed how a voluntary surrender and a final termination order can have dramatically different effects on a child's permanency. We first noted that termination creates a finality to the action which is not present with a voluntary identified surrender. Id. at 146. Secondly, termination carries "future ramifications" arising from N.J.S.A. 30:4C-11.3, which excuses the Division from providing reasonable efforts to reunify a removed child with a parent if a court of competent jurisdiction has determined that "the rights of the parent to another of the parent's children have been involuntarily terminated." Id. at 147. We find appellant's argument particularly unpersuasive as Amy has been placed with G.T., who desires to adopt her.

The extensive record of services provided, as well as the trial court's consideration of alternatives to termination, supports the finding under prong three.

The final prong of the best interests test requires a showing that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The court should consider the "child's need for permanency." F.M., supra, 211 N.J. at 453. The trial court accorded great weight to the testimony of the Division's expert, Dr. Weitz, noting "Dr. Weitz opines that termination of [Eric's] parental rights will have 'no impact' on [Amy]." In addition, it is important to note that Amy has been in the care of DYFS for her entire life.

Defendant argues the trial judge's analysis on this point was deficient as it ignored ample evidence of a bond between Eric and Amy. In support of his argument, Eric cites portions of Dr. Weitz's testimony where she acknowledged that there was a relationship between Eric and Amy, that it was "something special," that Amy referred to her father as "dada," that she "appeared to be receptive to her father's love and affection," and "looked toward the door and reached out with a toy as though . . . trying to make some kind of connection to him."

We first note that Dr. Weitz's testimony was unrefuted. While the comments by Dr. Weitz cited by appellant clearly indicate that Amy has some familiarity with Eric and "she has fun with him and she's happy with him," when they are taken in context, they are consistent with Dr. Weitz's conclusion that Amy's relationship with her father had not developed into a true and enduring bond. Dr. Weitz noted that Amy displayed similar attachment for her caregiver, expressing happiness when she walked into the room and reaching out for her when she left. Dr. Weitz concluded that Amy was not bonded to her caretaker either.

A child's need for permanency is an important consideration under the fourth prong. See In re K.H.O., supra, 161 N.J. at 357-58. The trial court properly considered Amy's need for permanency in light of Dr. Weitz's determination that termination of Eric's parental rights would have "no impact" on Amy. We are satisfied that the fourth prong has been established by clear and convincing evidence.

Our review of a trial court's termination of parental rights is limited to "determining whether [the] decision . . . was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). Measured under these standards, there is clear and convincing evidence in the record supporting the trial judge's conclusion that the Division satisfied all four prongs in terminating Eric's parental rights and granting guardianship to the Division. We discern no basis to disturb this determination.

A

ffirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 For ease of reference and to protect the privacy of the minor child, we employ fictitious names in referring to the parties.