OF YOUTH AND FAMILY SERVICES,1 v. E.S IN THE MATTER OF THE GUARDIANSHIP OF W.S., minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5208-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

E.S.,

Defendant-Appellant.

__________________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

W.S., minor.

December 12, 2012

Submitted October 11, 2012 - Decided

Before Judges Fuentes, Ashrafi and Hayden.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Cape May County, Docket No. FG-05-17-10.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Reid Adler, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant E.S. appeals from the May 12, 2011 Family Part judgment of guardianship, terminating his parental rights to his child W.S. and awarding guardianship to the New Jersey Division of Youth and Family Services (the Division). E.S. contends that the Division did not demonstrate by clear and convincing evidence three of the four prongs of N.J.S.A. 30:4C-15.1a. The law guardian supports termination and urges us to affirm the trial judge. Having reviewed the record in light of the contentions of the parties and the applicable law, we affirm.

The record shows that E.S. is the biological father and K.G. is the biological mother of W.S., who was born November 21, 2008. K.G. was a defendant in the guardianship proceeding but surrendered the child for adoption by the current resource parent and has not appealed the judgment of guardianship. E.S. and K.G. have another child, M.S., born January 1, 1995.

The Division initially became involved with this family in February 2008, when the police found the parents wandering in a confused state around a marsh area and took them both to the hospital. After viewing the disorganized conditions in defendants' home when they went to check on M.S., the police alerted the Division. During a subsequent investigation, the Division discovered that both parents were in methadone maintenance programs and both also were taking opiate and other mood-altering prescription medications. The parents' drug treatment program reported that defendants had been discharged from the program for continuing to test positive for other prohibited substances in addition to methadone. The Division did not find that the parents had abused or neglected M.S. at that time.

In March 2008, K.G. was arrested for taking a purse in a diner while accompanied by E.S. and M.S. The police charged both parents with endangering the welfare of a child. The Division executed an emergency removal of M.S. because the parents were incarcerated and no one was able to care for the child. The trial judge subsequently approved the removal, awarded the Division custody and ordered the parents to have psychiatric and substance abuse evaluations.

In April 2008, E.S. overdosed on a combination of Xanax, Percocet and methadone, and was involuntarily committed to the psychiatric ward. He had previously been involuntarily committed in October 2007. During the course of this litigation, E.S. had treatment for reported overdoses in June, July and October 2009. E.S. declined to participate in services the Division provided because he was moving to Philadelphia to live with his mother.

In August 2008, E.S. had a substance abuse evaluation, which produced a recommendation that he attend an intensive outpatient program with medication management. E.S. began the program but was soon discharged for attending group sessions in an intoxicated state. In September 2008, E.S.'s mother obtained custody of M.S. and the judge dismissed the child protection litigation.

When W.S. was born on November 21, 2008, he had mild tremors and appeared to be suffering from withdrawal symptoms. After filing a complaint alleging abuse and neglect in Family Part, the Division obtained an order of custody and placed W.S. in a specialized resource home for medically fragile children. The Division asked the parents for the names of any relatives or friends with whom to place the child. The few named relatives either declined or were determined to be ineligible. On July 29, 2009, when W.S. was no longer considered medically fragile, he was placed in the resource home of K.M., who has cared for him since and wishes to adopt him.

After E.S.'s removal, the judge ordered the Division to provide services and ordered the parents to participate in them. The Division set up visitation but the parents were inconsistent, going for months at a time without a visit. Even when they had confirmed the visitation, they failed to attend due to illness, car problems, inclement weather, and general emergencies. At times, E.S. appeared at scheduled visitations incoherent and seemingly under the influence of a mind-altering substance. When E.S. reported that he was living in Philadelphia, the Division changed the visitation location to Camden to accommodate him but the visits remained sporadic.

Dr. David Harrison, a psychiatrist, evaluated E.S. on January 28, 2009, and recommended that E.S. slowly taper off methadone. On March 10, 2009, Dr. Jo Anne Gonzalez, a psychologist, also evaluated E.S. During the evaluation E.S. acknowledged that he sometimes had "overtaken" his medication and, at times, had not been truthful in disclosing the amounts of xanax, oxycodone and methadone he took daily. He told the psychologist that he was working with his doctor to wean himself off his medication. Dr. Gonzalez concluded that E.S.'s cognitive functioning and judgment were affected by his medication abuse, which in turn limited his parenting ability. She opined that E.S.'s prognosis was poor because he was unwilling to admit any problem and was not candid with treatment providers.

The Division also referred the parents for substance abuse evaluation and treatment multiple times but E.S. remained resistant. When he finally was evaluated, he informed the evaluator that he did not have any problems and stated that he did not need treatment.

After the parents failed to participate in services required to address the problems leading to the removal, the judge approved the Division's plan for termination of parental rights followed by adoption by K.M. Shortly thereafter, the Division filed a complaint seeking termination of the parental rights of both parents.

On December 3 and 8, 2010, Dr. Joann Schroeder, a licensed psychologist, evaluated E.S. for the Division. E.S. denied having a drug problem and blamed the Division for fabricating lies about him. He asserted that if the Division had told him to stop taking his prescription drugs, he would have. Additionally, he maintained that his use of prescription drugs was harmless because they were prescribed by a physician, and that his high doses of methadone and oxycodone were justified by his high tolerance.

Dr. Schroeder concluded that E.S. was dependent on prescription drugs, and that this dependence and his frequent overdoses made him unfit to be a parent. In addition, she found he had untreated bipolar disorder and other psychiatric issues, which likely contributed to his substance abuse. In her opinion, E.S. was unsuited to supervise W.S., incapable of being a consistent caregiver, and unable to keep W.S. safe. She opined that E.S. could not be W.S. s full-time caregiver until he controlled his substance dependence issues.

In addition, Dr. Schroeder conducted a bonding evaluation of E.S. and W.S. and found an "insecure attachment" between them. In her opinion, terminating their relationship would cause W.S. some harm. She also conducted a bonding evaluation with W.S. and K.M., his resource parent. Dr. Schroeder determined that W.S. was "securely attached" to K.M. and that terminating their relationship would cause W.S. serious and enduring harm. She observed that any harm caused by ending W.S. s relationship with E.S. would be mitigated by the child s secure attachment to K.M. W.G., K.M.'s fiancée, was not part of the bonding evaluation because, while he had lived in K.M.'s home for about six months, he was not W.S.'s primary caregiver and did not intend to adopt him.

Prior to the guardianship trial, K.G. surrendered her parental rights to W.S. to allow K.M. to adopt him. At the trial, the Division presented numerous documents, most of which were admitted without objection. Defendant objected to some documents on grounds of relevancy or hearsay but the judge admitted them into evidence. The sole witness was the Division caseworker, Sherryl Fodera. E.S. did not attend the trial.

At the conclusion of the trial, Judge Porto gave an oral decision, finding that the Division satisfied the four prongs of the best interests of the child test by clear and convincing evidence. Accordingly, he entered a judgment of guardianship, terminating E.S.'s parental rights to W.S. and awarding the Division custody.

On appeal, E.S. argues that his parental rights were erroneously terminated because the Division failed to prove, by clear and convincing evidence, prongs two, three and four of the best interests of the child test specified in N.J.S.A. 30:4C-15.1a. We disagree.

We note first the legal principles that govern our consideration of defendant's argument. "[P]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children . . . ." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 9 (1992)). In view of that fundamental interest, the law "clearly favors keeping children with their natural parents and resolving care and custody problems within the family." Id. at 165 (citation omitted). However, parental rights are not absolute; the State also has a "parens patriae responsibility to protect the welfare of children" in situations where the child's parents are "unfit, or that the child has been neglected or harmed." Id. at 166 (citation omitted).

When seeking termination of parental rights under N.J.S.A. 30:4C-15.1a, the Division has the burden of establishing by clear and convincing evidence that:

(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.

These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 167 (citations omitted); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, our scope of review of the trial judge's findings of fact is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We must uphold the trial court's factual findings so long as 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, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). However, we owe no special deference to a trial court's interpretation of the law and legal consequences that flow from the facts. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).

Guided by these principles, we are satisfied that there is clear and convincing evidence in the record proving all four prongs of the best interests of the child standard. We affirm substantially for the reasons stated by Judge Porto in his thorough oral opinion.

The first prong of the "best interests test" under N.J.S.A. 30:4C-15.1a(1) requires us to determine whether the "child's safety, health or development has been or will continue to be endangered by the parental relationship." M.M., supra, 189 N.J. at 281; In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Judge Porto found that the Division proved this prong because of defendant's unaddressed substance abuse and mental health issues, his lack of participation in visitation and his general failure to comply with services. Defendant does not dispute that the Division proved prong one.

Rather, defendant argues that the judge's findings on prong two were cursory, did not demonstrate defendant was unable to care for his son and were insufficient to meet the clear and convincing standard. The second prong relates to parental unfitness and requires the court to decide "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." I.S., supra, 202 N.J. at 167 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). Thus, the judge must determine whether the parent has cured the initial harm that led to removal and whether the parent is able to maintain a harm-free relationship with the child. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Addressing the second prong, Judge Porto found that during the course of the litigation E.S. had demonstrated an inability or unwillingness to eliminate the harm and to make consistent efforts to provide a safe, stable home for his son. Judge Porto found most significant that E.S. had not made any meaningful effort to address his substance dependence or complete any services offered by the Division to eliminate the harm he was causing the child. In addition, the judge pointed to E.S.'s housing instability, his chronic unemployment, and his lack of efforts to support himself financially.

Regarding prong three, defendant argues that the Division failed to provide the necessary services to alleviate defendant's problems. Under this prong, the Division need only provide appropriate services but cannot ensure that the parent will take advantage of the opportunity. D.M.H., supra, 161 N.J. at 393. Here the judge determined that the Division made reasonable efforts by offering E.S. substance abuse referrals and outpatient treatment, urine screens, psychological and psychiatric evaluations, assistance with parenting skills, bus passes and transportation; and by repeatedly emphasizing to E.S the need for him to address the deficits they observed so that he could be reunified with W.S. The judge noted that defendant had "ample opportunity" to take part in services but showed only the "minimum level of compliance," as seen by his history of missed visits, general unavailability for services, and his lack of serious effort toward ending his substance abuse.

Finally, defendant disagrees with the judge's prong-four finding that terminating E.S.'s parental rights would not do more harm than good. The question under this prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her resource parents." K.H.O., supra, 161 N.J. at 355. "When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). This determination generally requires an expert to evaluate the comparative strengths of the relationship between the child and the biological parent, and that of the child and the resource parent. Ibid. (citing J.C., supra, 129 N.J. at 25). See also N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

Here, the requisite bonding evaluations were done and the results showed that W.S. was securely bonded to the resource parent and would suffer severe and enduring harm if removed from her. Additionally, the secure attachment would enable the resource parent to mitigate any harm suffered from permanent separation from E.S. We reject defendant's argument that the trial judge's prong-four analysis was deficient because the bonding evaluations did not include K.M.'s fiancée, as he was not the child's primary caregiver and was not adopting the child.

Defendant also contends that certain documents concerning K.G. and events occurring prior to W.S.'s birth were erroneously admitted into evidence as they were irrelevant or hearsay. We find this argument without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

We discern no abuse of discretion in the judge permitting evidence of prior history of the family's involvement with the Division, or evidence concerning K.G. or any other competent evidence as long as it tended "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. We agree with the trial judge that the documents to which defendant objected had a tendency to prove facts concerning the four prongs of the best interests of the child test. Moreover, even if some of the challenged documents were admitted erroneously, defendant has not demonstrated that such admission was harmful error capable of producing an unjust result. See R. 2:10-2.

In sum, we are convinced from a review of the record that Judge Porto's factual findings were based on substantial credible evidence in the record and we are in accord with his legal conclusion that the Division has proven the best interests of the child test by clear and convincing evidence.

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families. The reorganization included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.