NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0034-12T2

A-0035-12T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.F. and H.F., SR.,

Defendants-Appellants.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF H.F., JR.,

a minor.

________________________________________________________________

October 28, 2013

Submitted October 8, 2013 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-12-12.

Joseph E. Krakora, Public Defender, attorney for appellant H.F., Sr. (Mark E. Kleiman, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant D.F. (Durrell Wachtler Ciccia, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria A. Galinski, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.F., Jr. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants H.F. (Harold)1 and D.F. (Dee) appeal from the termination of their parental rights to their son, H.F., Jr. (Harry). We affirm, substantially for the reasons set forth in the thorough and well-reasoned oral opinion of Judge James A. Farber.

N.J.S.A. 30:4C-15.1(a) authorizes the Division of Child Protection and Permanency (the Division) to petition for the termination of parental rights in the "best interests of the child" 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.

In their appeals, defendants argue that the trial court erred in finding that the Division proved each of these prongs by clear and convincing evidence. We find these arguments to lack any merit. Judge Farber carefully considered each of these prongs and cited adequate, substantial evidence in the record to support his conclusion that each of the prongs had been proven by clear and convincing evidence.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

The facts regarding this matter are set forth in detail in Judge Farber's opinion and need not be repeated at length here. We recite only the salient facts.

Harry was born to Harold and Dee on July 21, 2008. Just a few months earlier, in February 2008, defendants voluntarily surrendered their parental rights to Harry's two older sisters, who were then adopted by their maternal grandmother. Within weeks of Harry's birth, the Division received anonymous referrals that alleged Dee was using drugs and passing her infant son around to various people.

Both defendants submitted to substance abuse evaluations in September 2008. They each admitted they began using illegal drugs in their teen years; and that they had prior arrests and treatment for substance abuse. Each had at least one parole violation and Harold had been incarcerated. Each also denied current drug use.

Shortly after Harry's first birthday, the Division received a referral from Harold's probation officer advising that Harold had several recent positive tests for opiates. After completing a detoxification program, Harold admitted he had injected heroin almost daily for the prior thirty days.

Harold then filed a motion for custody of Harry, alleging Dee had overdosed on heroin the previous evening. Dee was admitted to a drug detoxification program in August 2009, where she acknowledged her relapse and intravenous heroin use.

The Division filed a verified complaint for custody in September 2009, which was granted by Judge Farber. On October 16, 2009, defendants stipulated to their substance abuse and that these behaviors constituted child neglect. As a result, the first prong of the analysis under N.J.S.A. 30:4C-15.1(a) was satisfied.

During the period of time between defendants' stipulation in October 2009, and the termination of their parental rights in July 2012, they were provided with numerous opportunities to address their substance abuse problems. Judge Farber noted the "record is replete . . . with reasonable efforts," which included:

multiple referrals for psychological evaluations; multiple referrals for substance abuse treatment, screens and lab tests; recommendations to each party to attend AA/NA; multiple substance abuse evaluations; exploration of relative resources . . . referrals for parenting skills, . . . referrals for counseling for each party and for [Harry]; supervising visits, . . . recommendations to comply with probation; Family Preservation Services; Family Intervention Services; assistance with social services for financial issues, such as housing or utilities; transports to visits, including jails, to evaluations, to probation, to Court, to treatment facilities . . . to social services, bonding evaluations; IQ test referral for [Harold]; Family Drug Court; Family Team meetings offered, recommendations for Couples counseling; . . . recommendations for Early Intervention services; . . . offers to help transport to pick up supplies from food pantries; toys for [Harry]; cell phone provided to [Harold] by Family Intervention Services; providing oil for [Harold's] home; referral to Early HeadStart program; providing a car seat.

None of these efforts produced lasting results. In the year from October 2009 through October 2010, there was some progress while the parties were being monitored by Family Drug Court, although marred by events such as Harold's incarceration for testing positive for morphine while on probation and his premature discharge from Turning Point. The visits with Harry reflected a positive bond with his parents and, in July 2010, Dee was awarded legal and physical custody of Harry.

Defendants' progress ended in October 2010. Just three months after obtaining custody of Harry, Dee suffered another relapse, which she blamed on the Division. The court denied the Division's request to remove Harry, allowing him to remain with Harold while restraining Dee from the house and limiting her to supervised visits. After Dee was discharged from one in-patient program for rules violations and left another, a bench warrant was issued for her arrest. Despite evidence that Harold submitted an adulterated urine sample, he graduated from Family Drug Court in January 2011.

The court denied a second request for custody by the Division in February 2011. The Division remained proactive with the parties. However, rather than comply with the offered services, defendants fled to North Carolina with Harry. The Division executed an emergency removal of Harry on April 15, 2011. Harold consented to an order dated April 18, 2011, that granted custody to the Division, admitting he lacked housing, had fled the state and used marijuana.

Although Harry remained happy to see his parents through May 2011, Harold tested positive for morphine on a day when he visited with Harry, and again on June 3, 15, and July 5, 2011. In the interim, he was arrested for drug related offenses on June 13, 2011. Dee began serving a three year sentence that would result in her remaining incarcerated until January 2013.

Meanwhile, Harry's behavior in placement became so difficult that he was removed from three foster homes during the period from April to June 2011. Then, in June 2011, things begin to change for him. Harry was placed and remains with the "Chase" family, who wants to adopt him. Harry developed an attachment to the Chase family and began to be resistant to visits with both defendants. As corroborated by the caseworker, the Court Appointed Special Advocate and the Law Guardian, Harry, then approximately three years old, expressed fear of being removed from the Chase home and the quality of his visits with his parents deteriorated. Although Dee was granted visitation with Harry while she was incarcerated, Harry did not want to visit her in jail, did not display affection toward Dee during the visits and had negative reactions after visiting her. Reports from his therapy and his preschool confirmed that Harry suffered from anxiety; that he became angry, anxious and nervous as the visitations approached; and that he stated he did not want to go to visits and wanted to become part of his foster family. Harry's anxiety improved when visits with Dee stopped.

Judge Farber received expert opinions from Mark Singer, Ed.D., on behalf of the Division and Frank Dyer, Ph.D., on behalf of the Law Guardian, and relied upon those opinions in reaching his conclusions.

Dr. Dyer conducted evaluations of Harold; Dee; Harold's girlfriend, C.K.; and bonding evaluations of Harry with each of his birth parents and with his foster parents. He concluded that neither Harold nor Dee was a viable candidate for custody. Each defendant's pattern of multiple rehabilitations followed by relapses reflected poor prognoses for both, particularly when they left situations in which their compliance was monitored, as in Family Drug Court. Dr. Dyer opined that Harry saw his parents, and his mother in particular, as persons who disappear from time to time and who pose a threat to his continued placement with the Chase family. Dr. Dyer concluded that if Harry were removed from his foster parents, he would suffer "a traumatic loss that would be very highly likely to provoke the extreme aggression and negativism that have been observed in him after contact with the birth parents." In contrast, Dr. Dyer stated that Harry would suffer "no severe and enduring harm" if his bond with defendants were severed.

Dr. Singer conducted extensive psychological evaluations of Dee and Harold. He also found the prognosis was poor for Dee improving her ability to parent. He concluded Harold remained at significant risk for drug use, that he lacks the physical and emotional resources needed to parent, and placing Harry with him would create an unacceptable risk of harm.

Judge Farber considered alternatives to termination. Focusing on Harry's needs, Judge Farber stated he "is screaming out for permanency now," something neither parent could provide for him. Therefore, he rejected reunification. Judge Farber also found an alternative placement with maternal relatives unacceptable because they had a limited relationship with Harry and were unable to take custody until the following September, an undesirable delay. Finally, Judge Farber noted that both Dr. Dyer and Dr. Singer opined that removing Harry from the Chase home "might cause irreparable damage," leading to "reactive adjustment disorder where [Harry] might be unable to form any real attachments in the future."

Because we find that the trial court's findings are supported by adequate, substantial and credible evidence in the record, we affirm, substantially for the reasons set forth in Judge Farber's oral decision.

Affirmed.

1 We use fictitious names to protect the parties' privacy.