NEW JERSEY DIVISION OF YOUTH AND FAMILY v. T.C.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5682-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.C.H.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF

L.R.T.J.,

Minor-Respondent.

_________________________________________________________

December 17, 2012

Argued November 27, 2012 - Decided

Before Judges Fisher, Alvarez and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-19-10.

Mary Potter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Potter, on the brief).

Christina G. Ramirez, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Natalie Serock, Deputy Attorney General, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for respondent minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, of counsel and on the brief).

PER CURIAM

Defendant T.C.H. appeals a judgment terminating her parental rights to her eighth child,1 L.R.T.J., who was born on December 2, 2004.2 Defendant does not specifically contest the trial judge's findings on the first and second prongs of the statutory test for the termination of parental rights, see N.J.S.A. 30:4C-15.1(a); she instead focuses on the third and fourth prongs, claiming "the willful blindness and inexcusable delay" of plaintiff Division of Youth and Family Services3 "in assessing and failing to either approve or disapprove" the maternal grandmother's request to raise the child with his siblings "undermined the foundation of the best interests determination" and requires reversal. We reject these arguments and affirm for the reasons set forth in Judge Kathryn A. Brock's comprehensive and thoughtful written opinion. We add the following additional comments.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "The preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). As a result, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division of Youth and Family Services (the Division) prove by clear and convincing evidence the following four prongs:

(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 . . .;

(3) The [D]ivision 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 also A.W., supra, 103 N.J. at 604-11. The statute's four prongs are not "discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Once judgment is entered, our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

The child in question was removed from defendant's custody, for the second time, on July 31, 2008. The court entered an order on August 4, 2008, which memorialized a finding that continuing in defendant's custody would be detrimental to the child's welfare because of defendant's long history of substance abuse and because defendant had left the child with her mother, D.S. (hereafter "the grandmother"), who, as Judge Brock held, "left [the child] with a seventeen year old with responsibility to care for seven other children," who ranged from sixteen years old to fourteen months old.4 The court initially determined that the child should be removed from the grandmother's home due to the inadequate supervision available from the seventeen-year old when the grandmother was not present.5 And the judge also found that, among other things, removal was necessary because defendant "was noncompliant with the recommendation that she go into an inpatient . . . program despite her recent drug use."

The guardianship trial took place over the course of nine days, commencing in October 2010 and ending in May 2011. The evidence confirmed the concerns previously recognized not only about defendant, but also about the grandmother's ability to provide a safe and suitable home for the child. Regarding the former, Judge Brock explained that defendant "had given birth to six children between 1989 and 1999 who had been exposed to drugs while she was pregnant, and that three of them had tested positive for cocaine at birth." The judge found that the child in question tested positive for barbiturates at birth, and defendant admitted she did not seek or obtain prenatal care and had used cocaine, cigarettes and alcohol during her pregnancy.

Defendant, shortly after the child's first removal, was placed in a residential drug treatment program, which she completed in the summer of 2005; defendant, however, relapsed and tested positive for cocaine later that year. The child was placed with the mother in a residential drug treatment program in February 2006 and remained with her until April 2008 when, during a Division investigation regarding one of defendant's other children, defendant conceded she had relapsed six months earlier. The Division arranged for yet another residential program for defendant and the child, and defendant promised to attend in July 2008, claiming she would "do whatever it took" to keep the child. Defendant, however, sent the child to live with her mother and failed to attend the program, leading to the second removal at the end of July 2008.

Defendant's continuing failures to adequately deal with her substance abuse problems resulted in the approval of a permanency plan for the termination of parental rights in June 2009. These circumstances, as well as evidence of subsequent and additional problems, all recounted in great detail in Judge Brock's written opinion, fully supported her conclusions that, by clear and convincing evidence, the Division proved the first and second prongs of the statutory test. As already mentioned, defendant does not focus on these findings in appealing the trial court's judgment.

Instead, defendant argues that the Division failed to move with sufficient speed in assessing the grandmother as a placement option for the child. Specifically, defendant refers to the fact that, on February 2, 2010, the court ordered the Division to study the grandmother's suitability, and the Division did not issue a rule-out letter until May 26, 2010. Moreover, defendant claims there was confusion about whether or when the grandmother received the rule-out letter, and there was an unreasonable delay in processing the grandmother's administrative appeal of that determination. Judge Brock appropriately expressed concern about the delay but concluded it did not warrant a delay in the disposition of this guardianship action:

It is hard to fathom why the entire process has taken so long, and why the case work supervisor would not be able to give a more specific response . . . but based on the child's need for permanency and the reasons set forth below, this [c]ourt will not grant [defendant's] request . . . that this matter should be held until the administrative appeal has been determined.

We agree that the judge properly proceeded despite the confusion and delay in the administrative appeal.

Unlike N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), the Division was aware of the grandmother and the fact that the grandmother was caring for the child's siblings from the outset, but found placement with her unsuitable because of the great number of children already present in that home and because the grandmother had allowed a teenager, who was the mother of her own infant, to supervise the child in question as well as others. When the child was removed from defendant's custody in 2008, the Division asserted and the trial court found that the child should be temporarily placed elsewhere. In addition, the parties were free to, and did in fact, offer evidence relating to placement with the grandmother or elsewhere as an alternative to foster care. In K.L.W., our criticism of the Division's delay, upon which defendant almost exclusively relies here, arose from circumstances where a parent chose not to offer her parents as a resource for a considerable period of time after the child's birth and placement outside the home -- circumstances not present here.6 Accordingly, Judge Brock was correct to proceed to a disposition of the guardianship case despite the confusion or delay in the grandmother's administrative appeal.

The record reveals that the parties had a full and fair opportunity to offer evidence regarding the third prong and the suitability of the grandmother's home. That particular question was first examined by the court in July 2008, when the child was removed from defendant's custody for the second time; the Division was well aware of the grandmother's status because the child had been sent by defendant to live with the grandmother prior to removal. And, unlike the circumstances in K.L.W., the Division was aware of the grandmother's potential availability and the fact that a number of defendant's other children resided with the grandmother. These circumstances, coupled with the Division's open case with the grandmother regarding another of defendant's children, and the overcrowded and unsupervised situation into which the child would have been immersed if placed with the grandmother, provided sufficient evidence to call for the child's placement elsewhere. This same evidence, together with the judge's other findings regarding the grandmother's indifference to defendant's substance abuse problem,7 properly led the judge to conclude that the Division had met its burden of persuasion on the third prong.

For these reasons, as well as those thoroughly discussed in Judge Brock's thoughtful written opinion, we also conclude that the Division met its obligation to prove, by clear and convincing evidence, the fourth prong of the statutory test.

1Two of defendant's eight children died young -- one soon after birth in 1989 and the other when five years old in 1999. Defendant's five other children are E.H., Ja.H., Ty.H., Jo.H., and Ta.H., who were born in 1991, 1992, 1995, 1997 and 1999, respectively.

2Defendant identified G.B.J. as the child's father. A paternity test, however, excluded G.B.J. and defendant identified no other person as the child's biological father.

3The Division was recently renamed the Division of Child Protection and Permanency. L. 2012, c. 16 (eff. June 29, 2012).

4The fourteen-month old was the child of the seventeen-year old.

5The record reveals that the grandmother was taking courses for five hours per day and that the seventeen-year old child supervised the younger children on those occasions.

6In K.L.W., both mother and child tested positive for cocaine when the child was born in March 2008. 419 N.J. Super. at 570. At that time, the Division inquired, but the mother urged the caseworker not to contact her parents because they did not know of her drug use; accordingly, the Division did not reach out to the grandparents due to concerns for the mother's privacy. Id. at 571. The grandparents, who were led to believe that the baby was with a relative, were not advised of the child's residence with a nonrelative until August 2009, and the mother did not ask the Division to consider placing the child with her parents until November 2009. Id. at 573.

7The judge also observed that the grandmother knew defendant continued to consume alcohol but "did not believe that [defendant] ever had a problem with the use of illegal drugs, and she did not have that problem at the time of the trial, despite the Division telling her that was the reason for [the child's] removal from his mother's custody." As a result, the judge found the grandmother's

initial testimony that [defendant] wanted to keep [the child] with her because he provided the incentive for her "to clean herself up" is inconsistent with that position, and reflects the reality that from the time of his birth until 2007, [defendant] was in substance abuse treatment programs, and that . . . [the child] was removed from her custody again in July of 2008. This [c]ourt finds that the point made by the law guardian in summation that [the grandmother] has been putting her head in the sand, and that if she does not believe her daughter has a problem with illegal drugs, she will not be able to protect [the child], is well taken.

This finding is entitled to our deference and provides further evidence of the unsuitability of the grandmother as a caretaker for the child.