NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2655-11T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.C.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.L.P. and N.M.P., Minors.

_______________________________________

March 26, 2013

Submitted March 19, 2013 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-32-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard B. Tat, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for N.L.P. and N.M.P., minors (David R. Giles, Designated Counsel, on the brief).

PER CURIAM

C.C. appeals from a judgment entered by the Family Part on December 21, 2011, terminating her parental rights to two minor children, N.L.P. and N.M.P. For the reasons that follow, we affirm.

The Division of Youth and Family Services1 became involved with C.C. and her family on December 29, 2008, when the Jersey Shore Medical Center reported that C.C. tested positive for marijuana and opiates upon her admission to the hospital. C.C. gave birth to N.M.P. that day. C.C. had tested positive for marijuana throughout her pregnancy, and she informed the hospital that she and V.P., the child's biological father, were in a Methadone program. N.M.P. experienced symptoms of withdrawal and she remained in the hospital until January 6, 2009. In addition, the Division was informed that N.L.P., the couple's other child, was addicted to methadone when he was born on October 29, 2007.

At the time the Division became involved with the family, C.C. and V.P. were living with the children in the home of V.P.'s parents. At the Division's request, C.C. and V.P. agreed to participate in a safety protection plan, under which they would be supervised by the paternal grandfather when with the children. C.C. and V.P. also agreed to participate in substance abuse evaluations. Thereafter, V.P. tested positive for marijuana. The Division also learned that V.P. had a criminal history.

On January 16, 2009, the Division filed a verified complaint in the Family Part and the court entered an order that day placing the children under the Division's care and supervision. The following day, the Division was informed that C.C. and V.P. had been involved in an incident of domestic violence in the presence of the children. An amended safety protection plan was developed, which required V.P. to leave the home, with the children remaining in the care of C.C. and the paternal grandparents, who would supervise C.C. when she was with the children.

A Division worker visited the grandparents' home on January 28, 2009, and noted that C.C. was alone in the house with the children, while the paternal grandfather was outside shoveling snow. C.C. also missed a substance abuse evaluation which had been scheduled that month. The paternal grandfather asked that C.C. be removed from the home. The Division effected an emergency removal of the children and placed them in foster care.

On January 30, 2009, the Division filed an amended complaint in the Family Part and the court entered an order finding that, because there had been an incident of domestic violence in the home and substance abuse by C.C. and V.P., immediate removal of the children was warranted. The court ordered C.C. and V.P. to submit to random urine screens, attend substance abuse and psychological evaluations, and attend anger management and domestic violence classes. The order additionally provided that C.C. and V.P. would have weekly supervised visitation with the children.

In the months that followed, the Division offered C.C. substance abuse evaluations and treatment. In March 2009, C.C. admitted that she abused cocaine. On April 1, 2009, C.C. acknowledged using cocaine and opiates before a supervised visit with the children. The following day, C.C. participated in a psychological evaluation with Dr. Robert J. Puglia, who noted in his report dated April 24, 2009, that C.C. had reported an extensive history of substance abuse.

Dr. Puglia noted that C.C. had adjustment disorder, with mixed emotional features of depression and anxiety; cocaine, alcohol, cannabis and opiate dependency; biopolar disorder, not otherwise specified; paranoid features; and histrionic, compulsive and narcissistic personality traits. He also noted that C.C. was a domestic violence victim and perpetrator. She experienced various psychosocial stressors, including the children's removal from her custody, financial difficulties and unemployment.

Dr. Puglia opined that, in view of C.C.'s emotional disabilities, aggressive behavioral patterns and maladaptive behaviors, reunification with the children should be deferred until she successfully completed various services, including substance abuse treatment. Dr. Puglia wrote that it would be in the children's "best interest to remain in a placement that is safe, secure and nurturing[.]"

At a court hearing on May 14, 2009, C.C. stipulated that she used marijuana during her pregnancy with N.M.P., and that N.M.P. tested positive for cannabis at birth. In addition, C.C. and V.P. stipulated that they violated the Division's safety protection plan which required that their visits with the children be supervised at all times. C.C. and V.P. also stipulated that they engaged in a domestic violence incident in the children's presence. The court entered an order dated May 14, 2009, finding that C.C. and V.P. abused or neglected the children. The court suspended their visits with the children.

On May 20, 2009, C.C. tested positive for opiates. That month, the Division began to evaluate the paternal grandparents as potential caretakers, and they began regular visits with the children. In August 2009, C.C. attended an intake appointment for a substance abuse program but failed to return after that appointment and was thereafter discharged from the program for noncompliance. In September 2009, C.C. tested positive for cocaine and opiates. In October 2009, C.C. entered an inpatient substance abuse program.

In December 2009, the trial court conducted a permanency hearing and found that the children's reunification with C.C. was an appropriate goal, which would be reviewed in three months. The court reinstated the parents' visitation. On March 19, 2010, the court accepted the Division's plan for reunification of the children with C.C.

That month, C.C. completed her inpatient substance abuse program, but she was required to attend an intensive outpatient program. On April 27, 2010, C.C. failed to appear for an intake appointment with a family counseling program. In May 2010, C.C. tested positive for opiates and heroin.

In June 2010, C.C. tested positive for cocaine, opiates, hydrocodone and methadone. The Division thereafter arranged for C.C. to attend an inpatient substance abuse program but she signed herself out after four days, against medical advice. From July 2010 through September 2010, C.C.'s whereabouts were unknown. The Division commenced the process for licensing the paternal grandparents as resource parents. In November 2010, the Division found C.C. She was incarcerated in the Ocean County jail. The Division again lost contact with C.C. after she was released from jail.

On December 6, 2010, the court conducted another permanency hearing. The Division changed its plan to termination of parental rights followed by either adoption or kinship legal guardianship with the paternal grandparents. The court ordered the Division to discuss these options with the grandparents and to inform the court whether the grandparents were willing to adopt the children.

On January 14, 2011, the Division filed its guardianship complaint seeking the termination of C.C.'s and V.P.'s parental rights to the children. In February 2011, C.C. contacted the Division, which offered additional substance abuse and counseling services. C.C. failed to attend appointments and advised the Division that she would obtain her own treatment; however, there is no evidence that she did so.

On July 12, 2011, the court accepted V.P.'s identified surrender of his parental rights, so that N.L.P. and N.M.P. could be adopted by his parents. Thereafter, the court conducted a trial to determine whether C.C.'s parental rights should be terminated. She did not appear, but she was represented at trial by an attorney. The Division presented testimony from case manager Amy Dudley, Dr. Mark Seglin and the parental grandparents.

On December 1, 2011, the court rendered a decision from the bench. The court found that the Division had presented clear and convincing evidence establishing all four prongs of the best interests test for termination of parental rights, as codified in N.J.S.A. 30:4C-15.1(a). The court memorialized its decision in a judgment entered that day. The court filed an amended judgment on December 21, 2011. This appeal followed.

C.C. argues that the trial court erred by finding that termination of her parental rights would be in the best interest of the children. We cannot agree.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). "The constitutional protection surrounding family rights is tempered 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). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interest of the child" if the following criteria are established:

(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;

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

"The four criteria enumerated in the best interests standard 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.

The scope of our review in an appeal from an order terminating parental rights is strictly limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)).

C.C. concedes that the Division presented clear and convincing evidence that the children's health and development have been harmed by their relationship with her. N.J.S.A. 30:4C-15.1(a)(1). She acknowledges that the evidence clearly and convincingly showed that she is unwilling or unable to eliminate that harm, and a delay in permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a)(2). In addition, C.C. contends that the Division's efforts to address the reasons for removal of the children from her care were reasonable, and the Division considered alternatives to termination of her parental rights. N.J.S.A. 30:4C-15.1(a)(3).

C.C. argues, however, that the Division failed to show by clear and convincing evidence that termination of her parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). C.C. asserts that the trial court relied too heavily on her prior history of bad acts. She says that she is only a "tangential part" of the children's lives and no additional harm can be inflicted upon them if the status quo is maintained. She contends that the evidence showed that the children will be harmed if her parental rights are terminated.

We are convinced, however, that the record fully supports the trial court's finding that termination of C.C.'s parental rights will not do more harm than good. As the record indicates, C.C.'s long history of substance abuse and mental health disabilities led to the children's removal from her care. Thereafter, C.C. failed to fully avail herself of substance abuse treatment opportunities, and repeatedly tested positive for illegal drugs. She has not addressed her mental health disabilities. Dr. Puglia stated in his report that, for these reasons, the children would be at risk of harm if returned to her care.

Moreover, as Dr. Seglin testified at trial, C.C. remained dependent on illegal substances. Indeed, she had conceded that at the time of the evaluation, she was still using heroin. Dr. Seglin also found that C.C. was struggling with major depression and problematic personality disorders. He opined that C.C. was incapable of parenting the children and her prognosis was "guarded at best."

Dr. Seglin further testified that both children were strongly bonded to their parental grandparents, who had provided them with comfort, security and stability. He noted that N.M.P. had no meaningful parental relationship with C.C., and while N.L.P. would suffer some harm if C.C.'s parental rights are terminated, that harm would be mitigated by N.L.P.'s relationship with his paternal grandparents. Dr. Seglin recommended against returning the children to C.C.'s care, noting that the children faced a high risk of harm if they are reunited with C.C.

C.C. additionally argues that the trial court failed to give sufficient consideration to kinship legal guardianship with the parental grandparents. She asserts that this would provide "the ideal mechanism to ensure that" the children are not unduly harmed. However, the parental grandparents testified that they are willing and able to adopt the children. Under the circumstances, kinship legal guardianship is not a defense to termination of parental rights. N.J. Div. of Youth & Fam. Servs. v. P.P. 180 N.J. 494, 512-13 (2004).

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