NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. F.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-6048-11T1

A-6056-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

F.H. AND J.H.,

Defendants-Appellants.

________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.R. AND J.A.H.,

Minors.

________________________________________

May 31, 2013

Argued May 14, 2013 Decided

Before Judges Reisner, Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. FG-01-23-12.

Joseph E. Krakora, Public Defender, attorney for appellant F.H. (Carleen M. Steward, Designated Counsel, on the brief).1

Larry Leung, Designated Counsel, argued the cause for appellant J.H. (Joseph E. Krakora, Public Defender, attorney; Mr. Leung, on the brief).

Cassandra E. Rhodes, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Rhodes, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors J.R. and J.A.H. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIUM

F.H. and J.H. appeal from a judgment entered by the Family Part on June 18, 2012, which terminated F.H.'s parental rights to J.A.H. and J.R., and terminated J.H.'s parental rights to J.A.H. For the reasons that follow, we affirm.

J.A.H. was born in March 2007. F.H. is his mother, and J.H. is his father. In November 2008, F.H. contacted the Division of Youth and Family Services (Division) and reported that she was homeless and could no longer care for J.A.H.2 She explained that J.H. was incarcerated. He had been previously sentenced to a seven-and-one-half-year term of incarceration for drug-related offenses.

The Division executed an emergency removal of J.A.H. and on November 12, 2008, filed a verified complaint in the Family Part seeking care and custody of J.A.H. F.H. consented to the child's removal because she could not provide him with a safe and stable home. The court granted the Division's application.

The Division thereafter provided F.H. with an array of services. J.A.H. was initially placed in a resource home but later placed in the care of W.H. J.H. was released from jail on September 25, 2009, and the Division provided him with various services.

F.H. gave birth to J.R. in November 2009. Y.R. is the child's biological father. At the time of J.R.'s birth, F.H. tested negative for illegal drugs, but admitted to smoking marijuana during the pregnancy. The Division filed another complaint in the Family Part, seeking care and supervision of J.R. The court granted the Division's application. The child was eventually placed with J.A.H. in W.H.'s care. W.H. later advised the Division that she wanted to adopt both children.

The court subsequently approved the Division's permanency plans for the children, which called for the termination of parental rights followed by adoption. Accordingly, on November 17, 2009, the Division filed a complaint seeking the termination of F.H.'s and J.H.'s parental rights to J.A.H. In addition, on August 2, 2011, the Division filed its guardianship complaint seeking the termination of F.H.'s and Y.R.'s parental rights to J.R.

In its complaints, the Division recounted its experiences with F.H. and J.H. Among other things, the Division noted F.H.'s and J.H.'s failures to fully avail themselves of the services provided, their persistent substance abuse, their criminal conduct, F.H.'s repeated incarcerations, J.H.'s incarceration, J.H.'s violation of parole, and J.H.'s return to jail.

In May 2012, Judge Julio Mendez conducted a trial on the Division's guardianship complaints. Thereafter, the court accepted Y.R.'s identified surrender of his parental rights to J.R.

Judge Mendez subsequently issued a thirty-eight-page written opinion, in which he concluded that the Division had presented clear and convincing evidence on all four of the prongs of the test for termination of parental rights established by N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986), and codified in N.J.S.A. 30:4C-15.1(a). The judge memorialized his decision in a judgment dated June 18, 2012. Thereafter, F.H. and J.H. filed notices of appeal.

In her appeal, F.H. argues that the Division failed to satisfy the requirements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. F.H. contends that there was no evidence that she harmed the children. She maintains the judge erred by relying on her incarcerations as grounds for terminating her parental rights. F.H. argues that she has shown she is willing and able to correct the circumstances that led to the children's placement in foster care.

F.H. further argues that the Division failed to make reasonable efforts to bring about family reunification and while services were provided, they were not appropriate. F.H. additionally argues the evidence failed to establish that termination of her parental rights would not do more harm than good. She says the judge did not address whether she had the ability to mitigate the harm to the children if they are separated from their foster parent.

In his appeal, J.H. also argues that the Division failed to establish the requirements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. He contends that the Division did not show that J.A.H. was harmed by his "sporadic" marijuana use or incarcerations. He maintains that the evidence showed he is willing and able to eliminate any harm to the child. J.H. further argues that the Division failed to consider alternatives to termination of parental rights, including placement of J.A.H. with his paternal relatives.

J.H. additionally contends that the Division did not show that termination of his parental rights will not do more harm than good. He maintains the judge erroneously relied on the State's expert evaluation, which he says was outdated and inapplicable. He contends the record does not support the conclusions drawn by the State's expert, and the judge erred by failing to consider the child's desire to live with him.

We are convinced from our review of the record that F.H.'s and J.H.'s arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We affirm the judgment terminating F.H.'s and J.H.'s parental rights substantially for the reasons stated by Judge Mendez in his thorough and comprehensive opinion. R. 2:11-3(e)(1)(A). We add the following comments.

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 of parental rights is tempered, however, "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) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the following criteria are established 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 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 [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.

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

These four criteria "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.

"Our review of a trial judge's decision to terminate parental rights is 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. 1998)).

We are convinced that there is sufficient credible evidence in the record to support Judge Mendez's finding that the children's health and development have been endangered by their relationships with their parents. N.J.S.A. 30:4C-15.1(a)(1). The evidence established that J.A.H. and J.R. have been harmed by F.H's substance abuse, anger management problems, unstable housing, criminal conduct, and incarcerations. The evidence also established that J.A.H. was harmed by J.R.'s substance abuse, incarcerations, and failure to establish a relationship with the child when he was not in jail.

We are additionally convinced that there is sufficient credible evidence in the record to support Judge Mendez's finding that F.H. and J.H. are unwilling or unable to eliminate the harm facing their children, and a delay in permanent placement will cause further harm to the children. N.J.S.A. 30:4C-15.1(a)(2). The evidence showed that F.H. and J.H. failed to fully avail themselves of services, continued to abuse drugs, engaged in criminal conduct, and were incarcerated at various times. The evidence supports the judge's determination that the children had waited long enough for their parents to address the reasons for their placement in foster care, and they "should not be denied the opportunity to experience permanency through adoption."

The evidence also supported the judge's finding that the Division made reasonable efforts to assist F.H. and J.H. correct the circumstances that led to the children's placement in foster care, and considered alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The evidence showed that the Division provided F.H. and J.H. with numerous services. The evidence also showed that the Division properly considered other family members as caregivers and found them to be unsuitable.

In addition, the record supports the judge's finding that termination of F.H.'s and J.H.'s parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The judge noted that neither parent is presently capable of successfully parenting the children, and termination of defendants' parental rights would not do more harm than good because W.H. is a "wonderful caretaker[.]"

The judge found that the children are strongly and securely bonded with W.H., while they do not have a bond or connection with their biological parents. The judge indicated that the children view W.H. as their parent because she not only provides them with daily support and nurture, "but also structure and discipline." Based on the expert testimony presented by the State's expert, psychologist Dr. Ronald S. Gruen, the judge found that the children will suffer severe and enduring emotional harm if removed from W.H.'s care.

The judge also noted that the children will be harmed if their relationships with each other are severed. The judge emphasized the importance of keeping the children together. The judge stated that "the children are close in age and have the opportunity to grow up supporting one another." We are satisfied that there is sufficient credible evidence in the record to support these findings.

Affirmed.

1 F.H. waived oral argument on the appeal.

2 The Division is now known as the Division of Child Protection and Permanency. See L. 2012, c. 16, eff. June 29, 2012.