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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0816-13T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

G.D. and A.B.,

Defendants-Appellants.

________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.B., Jr., a minor.

November 13, 2014

Submitted November 6, 2014 - Decided

Before Judges Waugh, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-65-12.

Joseph E. Krakora, Public Defender, attorney for appellant G.D. (Gilbert G. Miller, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant A.B. (Anthony J. Vecchio, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Pugulisi, Assistant Attorney General, of counsel; Cassandra Rhodes, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian for minor A.B., Jr. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these two consolidated cases, defendants G.D. and A.B. appeal from the September 30, 2013 judgment of guardianship, which terminated their parental rights to their son, A.B., Jr., born in November 2010. Defendants contend that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test. N.J.S.A. 30:4C-15.1a. The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.

Based on our review of the record and applicable law, we are satisfied that the Division proved by clear and convincing evidence the requisite statutory factors required to terminate defendants' parental rights. Accordingly, we affirm.

I.

We will not recite in detail the history of the Division's involvement with defendants. Instead, we incorporate by reference the factual findings and adopt the legal conclusions contained in Judge Michael J. Blee's forty-page written opinion. We add only the following comments.

Appellate review of a family court's findings is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision is "supported by substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (internal quotation marks omitted). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (citations and internal quotation marks omitted).

II.

The Division must prove by clear and convincing evidence that termination of parental rights is in the best interests of the child. Id. at 447; see N.J.S.A. 30:4C-15(c). The Division must show that

The child's safety, health or development has been or will continue to be endangered by the parental relationship;

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;

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

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

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

A.

In concluding that the Division established the first prong, Judge Blee found that A.B., Jr.'s safety had been endangered by G.D.'s drug use during her pregnancy. The record reflects that G.D. used drugs such as heroin and methadone both prior to and throughout her pregnancy, including the day before she gave birth to A.B., Jr. Both mother and child tested positive for cocaine and opiates. A.B., Jr. was born ten weeks premature, and weighed only three pounds, seven ounces.

A.B., Jr. remained hospitalized for approximately two months after birth. He was born tongue-tied, which required surgery and speech therapy. A later MRI revealed that he had damage to the white matter in his brain from G.D.'s drug use during pregnancy. A report prepared by Ajit Mathur, M.D. on January 31, 2011, noted that he had "drug withdrawal syndrome." Additionally, Dr. Mathur noted that A.B., Jr. has intestinal problems, a lingual hernia, and eye problems. Subsequently, A.B., Jr. was diagnosed with "[l]ack of normal physiological development," cerebral palsy, and periventricular leukomalacia (PVL).

Contrary to G.D.'s argument that the Division failed to prove that her drug use harmed A.B., Jr., we find sufficient evidence in the record to support the trial court's determination that the child "did show signs of withdrawal as a result of his mother's drug addiction." See N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013). Moreover, withdrawal is only one symptom that can demonstrate harm from drug use during pregnancy. Id. at 22-23. Thus, even if A.B., Jr. did not suffer from withdrawal, as G.D. contends, there was ample evidence that the child suffered multiple health problems consistent with G.D.'s significant pre-natal drug use.

The court also found that A.B., Jr.'s health was endangered by both defendants' "prolonged inattention to their child's needs." It pointed to their "refusal to receive offered services to address their substance abuse issues and their patterns of criminal activity." The court emphasized that there were prolonged periods during which G.D. failed to attend scheduled visitations, and her recent substance abuse relapse on the eve of trial. While the judge recognized that A.B. should not be held responsible for G.D.'s failures, he noted that A.B. was currently incarcerated, continually used marijuana, and was in no position to care for A.B., Jr.

A.B. argues that the trial court erred in concluding that his incarceration or behavior "harmed" A.B., Jr. He correctly posits that incarceration, standing alone, is insufficient to prove parental unfitness or abandonment. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555 (2014); In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993). However, "'[i]ncarceration is . . . probative of whether the parent is incapable of properly caring for . . . or has abandoned the child.'" R.G., supra, 217 N.J. at 554-55 (quoting L.A.S., supra, 134 N.J. at 136). A court may consider a defendant's "'[p]erformance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration.'" Id. at 555 (quoting L.A.S., supra, 134 N.J. at 143).

Here, A.B. was incarcerated for a short time in November 2011, for possession of marijuana with intent to distribute. He then violated probation on March 27, 2012, and as a result served a six-month sentence. On February 13, 2013, he was charged with sexual assault, and remained incarcerated through the guardianship trial that concluded in September 2013. When not incarcerated, A.B. failed to "successfully complete any worthwhile" parenting skills or visitation program, correctly leading the court to conclude that he essentially shirked his parental responsibility. A parent's continued inattentiveness, lack of concern, and "withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing In re Guardianship of K.H.O., 161 N.J. 337, 352-54 (1999)).

Additionally, as to the first prong, the court properly found that because neither defendant ever cared for A.B., Jr. after he was born, and because he had developed strong bonds with his foster parents, who were abundantly attentive to his multiple needs, severing those bonds would cause the child "profound harm."

B.

Defendants next challenge the court's findings as to prong two. The court determined that despite the Division's numerous attempts to enroll defendants in substance abuse treatment, parenting skills courses, and visitation programs, they consistently failed to participate. The judge also cited the child's need for permanency. He concluded that due to defendants' "sporadic visitation and contact" with A.B., Jr., "separating [him] from his resource parents would cause serious and enduring emotional or psychological harm to the child in as much as they are the only individuals he identifies with as his true parents."

G.D. argues that during visits she showed affection to A.B., Jr., and that he returned that affection. She further contends that although she relapsed on the eve of trial, this should only be deemed a temporary setback. We disagree. By her own admission, G.D. has suffered from drug addiction for many years, describing her addiction as "out of control." She has unsuccessfully enrolled in both outpatient and inpatient substance abuse programs, relapsing after each, including while pregnant with A.B., Jr. Additionally, she was discharged from several visitation programs and parenting courses during the litigation due to her sporadic attendance. Finally, she was evicted and also went to jail several times during this period, so that she was in no position to provide a stable environment for the child.

A.B. made no real effort to reunite with A.B., Jr. throughout this litigation. Further, "'once a parent is imprisoned, a relationship with one's child[] that was nonexistent prior to incarceration will not likely be fostered.'" N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 243 (App. Div. 2010) (quoting L.A.S., supra, 134 N.J. at 139), certif. denied, 205 N.J. 519 (2011). Thus, the trial court did not err in finding the Division satisfied prong two.

C.

The trial court found that the Division undertook reasonable efforts to reunite A.B., Jr. with defendants, thus satisfying the third prong of the best interests test. Notably, the judge also found that the Division explored alternatives to termination, "but relatives have declined to become involved and the one friend of the family that came forward as a placement option[] later withdrew."

G.D. argues that this prong has not been met because the Division failed to advise her mother and the resource parents that kinship legal guardianship was an available alternative to adoption. However, the court heard testimony and considered documentary evidence that the resource parents were willing and able to adopt A.B., Jr. "[W]hen the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). Moreover, G.D.'s argument that her mother would have been open to kinship legal guardianship is at best speculative and ignores the uncontroverted evidence in the record that her mother did not wish to raise A.B., Jr.

A.B. argues that the Division failed to make reasonable efforts to rehabilitate him so that he could care for his son. In particular, he claims that he "was provided no assistance with housing or occupational training." However, the record amply supports the trial court's view that A.B. was uninterested in improving his life. The Division's expert observed that A.B. had "no concrete plans for securing employment," and "no specific goals to alter his current life's direction." An appellate court must "defer to the trial court's assessment of expert evaluations." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 221 (App. Div. 2013). Moreover, during the infrequent occasions when he was not incarcerated, nothing in the record suggests that A.B. was interested in seeking housing or employment assistance.

D.

A.B. does not challenge the trial court's findings regarding prong four. G.D., however, argues that although the resource parents will provide a good home to A.B., Jr., termination threatens the great harm of ending all connection between mother and child.

An important consideration under this prong is the child's need for permanency. F.M., supra, 211 N.J. at 453. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid.

Since June 2011, A.B., Jr. has been living with resource parents who the trial court found "have recognized and attended to A.B. Jr.'s extensive developmental delays with dedication, knowledge, affection and joy." Substantial evidence in the record supports the court's conclusion that defendants are "[in]capable of providing the heightened degree of care that A.B., Jr. needs due to their own unresolved issues." The unrefuted expert testimony established that A.B., Jr. has bonded with the resource parents, to whom he looks for comfort. To maintain the status quo in the hope that G.D. might some day improve, would deprive A.B., Jr. of a chance at permanency and a more stable life with the resource parents, and will undoubtedly do him more harm than good.

Judge Blee properly found that the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. Defendants' remaining arguments, to the extent that they are not specifically addressed in this opinion, are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.