NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. W.B., Sr

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

W.B., Sr.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF W.L.B., Jr., a minor.

___________________________________

November 13, 2014

Argued September 30, 2014 Decided

Before Judges Ostrer, Hayden and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-35-13.

Christine Olexa Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the briefs).

John W. Tolleris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Tolleris, on the brief).

Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for minor W.L.B., Jr. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief).

PER CURIAM

W.B., Sr. (W.B.) appeals from the Family Part's October 3, 2013, order terminating his parental rights to his son, W.B., Jr., (Walter)1, born August 29, 2010. He presents the following points and sub-points for our consideration

POINT I

The Trial Judge Erred in Holding That DCPP Satisfied Prong One Of The N.J.S.A. 30:4C-15.1a Test in Regard to W.B., Sr.

A. The Trial Court's Finding That W.B., Sr. Continued To Intentionally Use Marijuana Is Not Supported By Substantial Credible Evidence.

B. The Trial Court's Finding That W.B., Sr. Failed To Address His "Life Situation" Instability Is Contrary To The Evidence.

C. The Trial Court Unduly and Entirely Deferred the Decision on Prong One to the Expert For the Division, and That Expert Relied On Limited and Biased Information.

POINT II

The Trial Judge Erred in Holding That DCPP Satisfied Prong Two of the N.J.S.A. 30:4C-15.1a Test Regarding W.B., Sr.

A. The Trial Court Failed To Give Proper Consideration To Evidence Of Defendant-Appellant W.B., Sr.'s Willingness Or Ability To Eliminate The Harm Facing W.L.B., Jr. And To Provide Him With A Safe And Stable Home.

B. The Trial Court Improperly Determined That A Delay In Permanency Would Add To The Harm Suffered By W.L.B., Jr.

POINT III

The Trial Judge Erred in Holding That DCPP Satisfied Prong Three of the N.J.S.A. 30:4C-15.1a Test Regarding W.B., Sr.

A. The Division Failed to Make Reasonable Efforts to Help W.B., Sr. Correct His Parenting Deficiencies.

B. The Trial Court Failed to Properly Consider Alternatives to Termination Of Parental Rights.

POINT IV

The Trial Judge Erred in Holding That The Division Satisfied Prong Four of the N.J.S.A. 30:4C-15.1a Test Regarding W.B., Sr.

Based on the thorough written opinion of Judge William Anklowitz, issued after a two-day guardianship trial in September 2013, we affirm.

We need only summarize the facts, which Judge Anklowitz described in greater detail. Three witnesses testified at W.B.'s trial. Alan Lee, Psy.D., and a caseworker, Jill Mitchell, testified for the Division of Child Protection and Permanency (Division); and W.B. testified on his own behalf. W.B. did not present an expert, although the record reflects that he had retained one.

The evidence at trial demonstrated that W.B., who was thirty-nine years old at the time, suffered from significant parenting deficits including persistent marijuana use; lack of stable housing; lack of steady or full-time employment; psychological and emotional issues including poor impulse control and anger issues; multiple contacts with the criminal justice system, including incarceration for ten months; and lack of parenting skills. W.B. had never independently cared for Walter.

In early 2012, W.B. and Walter lived with Walter's mother, T.D., and T.D.'s older son S.D. from a different relationship. The two boys were briefly removed from the home in January 2012 after a domestic violence incident involving T.D. and W.B., which led to T.D.'s arrest and brief incarceration on unrelated warrants.2 The children were removed again on April 30, 2012 as a result of a psychological evaluation that found T.D. unfit. W.B. did not offer himself as a resource parent at the time, nor did the Division deem him suitable, as he had previously tested positive for marijuana use, had been referred for drug treatment and anger counseling, and lacked suitable housing.

During the twenty-month period before trial, W.B. was unable to overcome his parenting deficits. He remained unemployed and lacked appropriate housing in September 2013. Although the Division sent him referrals for housing assistance in early 2012, he did not make genuine efforts to secure housing until the middle of 2013, and they were not successful. Defendant testified at trial that he intended to take a G.E.D. test and seek training for a trade. Asked why he had not pursued those goals before, he explained that he wanted to complete his anger management, substance abuse, and parenting classes first.

Defendant repeatedly tested positive for marijuana use, but initially refused to attend treatment, and did not cooperate with a treatment program until late 2012. Although he completed the program in May 2013, he tested positive in March, April, and September 2013. The court discredited W.B.'s assertions that his use of marijuana in April was unintentional, and the positive test in September 2013 resulted from second-hand smoke.

Defendant's interactions with his son during visitation were often chaotic. Defendant occasionally failed to attend visitation, without prior notice, or arrived late. During a visitation in March 2013, he appeared to be under the influence, but refused to submit to a urine screen. During visitations, W.B. demonstrated an inability to redirect the toddler's behavior. There were numerous instances in which defendant ignored his son, chastised him, used profanity, and threatened to "pop" him.

Defendant initially rejected Division suggestions that he needed assistance in developing appropriate parenting skills. As late as March 2013, he insisted he did not need training in how to parent. He refused multiple invitations to attend Family Team Meetings. The meetings would have enabled the Division to assemble resources in W.B.'s extended family, and could have helped W.B. to implement a plan helping him to reunify with his son.

He ultimately completed domestic violence and anger management programming at Catholic Charities in 2013, but the program noted that W.B. "had more work to do." In mid-2013, he accepted assistance from a Catholic Charities counselor who had worked with W.B. in an anger management program. With the counselor's presence and guidance, W.B. showed improvement in three visitation sessions in spring 2013. Instead of being detached and critical of his son, he demonstrated "more compassion and significantly less scolding." The counselor perceived a clear and strong bond between father and son. W.B. eventually enrolled in a parenting skills program at Mercer Street Friends in July 2013. He attended five of eight sessions before trial, calling once to explain he was absent because of work.

Dr. Lee evaluated W.B. in August 2012 and July 2013. He also conducted bonding evaluations of Walter with W.B., and of Walter with the resource mother. Dr. Lee opined that W.B.'s intellectual functioning placed him in the borderline classification with a full scale IQ-2 of 72. Dr. Lee reported that W.B. had no prior child-rearing experience before the birth of Walter, his first child, and his knowledge of parenting and childrearing remained limited.

Dr. Lee described W.B.'s psychological profile as follows

He continues to present with a striking paucity of age-expected psychological and emotional resources. He shows rather poor stress tolerance, limited capacity for directed controls, poor long-term and consequential thinking, and related problems with judgment and decision-making. He tends to be quite hedonistic, self-serving, impulsive, and reckless. . . . He continues to be unrealistically grandiose in his self-appraisals and views of himself.

Dr. Lee found that W.B. continued to show a heightened level of anger and resentment, and antisocial behaviors and attitudes. His diagnosis was that W.B. had a personality disorder NOS with antisocial and paranoid features.

In the bonding evaluations, Dr. Lee found that Walter had an "ambivalent and insecure . . . attachment and relationship" with his father. Dr. Lee found no "significant or positive psychological attachment or psychological bond" between father and son. Dr. Lee concluded that there was a relatively low risk that Walter would suffer "severe enduring psychological or emotional harm" if the relationship with his father were permanently ended.

On the other hand, Walter had formed a significant and positive psychological attachment and bond with his foster mother, which, if terminated, would cause Walter "severe or enduring psychological or emotional harm" that W.B. was incapable of ameliorating. According to the Division's caseworker, the resource parent had provided an appropriate and supportive home, in which Walter thrived. Walter lived there with his half-brother, S.D. The resource parent wanted to adopt both boys.

Dr. Lee found that W.B. "remains at heightened risk for maladaptive personality and character traits, substance abuse relapse, criminal recidivism, and instabilities in his life and situation." W.B.'s prognosis was "rather guarded to poor." Dr. Lee concluded that W.B. "is not supported as an independent caregiver of a minor child at this time or within the foreseeable future."

Judge Anklowitz generally credited the testimony of Dr. Lee and the Division caseworker. The judge also found W.B. not credible in significant respects. He rejected W.B.'s claims that: the Division presented no basis for denying him custody of Walter after the April 2012 removal; W.B. did not intentionally use marijuana in April and September 2013; and the Division never referred him to parenting skills training. Judge Anklowitz cited evidence and testimony in the record belying each of W.B.'s claims.

The judge found the Division proved, by clear and convincing evidence, all four prongs of N.J.S.A. 30:4C-15.1(a)

(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 large part, W.B. challenges the factual basis for the court's determinations. However, after reviewing the record and applicable law in light of the arguments advanced on appeal, we discern no basis to disturb the court's findings, which were amply supported by substantial, credible evidence. We defer to the court's credibility determinations, mindful of its special expertise in the field. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).

We write briefly to address two points. First, we reject W.B.'s argument that the court placed undue weight on W.B.'s marijuana use in finding that the Division met its burden under prongs one and two. W.B. asserts the Division failed to show that his drug use affected Walter in any way. We recognize that proof of drug use alone is not enough to demonstrate abuse or neglect under title 9, see N.J. Div. Of Youth & Fam. Servs. v. V.T., 423 N.J. Super. 320 (App. Div. 2011), or under title 30, see N.J. Dep't of Children and Families v. A.L., 213 N.J. 1, 25 (2013). However, W.B. minimizes the impact of his drug use on his ability to serve as Walter's parent. W.B.'s continued drug use was emblematic of his self-serving personality, as found by Dr. Lee. W.B. continued to use marijuana despite his awareness that it impeded his ability to obtain housing or qualify for other assistance programs, which in turn were essential to his ability to provide a suitable home for Walter. W.B.'s substance abuse also posed a risk of renewed contact with the criminal justice system; reincarceration would obviously negatively impact W.B.'s ability to parent Walter. Finally, W.B.'s drug use was only one of multiple factors which, in combination, posed a risk of harm to Walter.

Second, we reject W.B.'s argument that the trial court erred in its finding that the Division met prong three. W.B. argues that the Division focused its efforts on T.D., and failed to make reasonable efforts to help W.B. correct his parenting deficiencies. The third prong of the best interests test requires the Division to undertake reasonable, but not necessarily successful, efforts to reunite the family. In re Guardianship of DMH, 161 N.J.365, 393 (1999). "[A]n evaluation of the efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." Id.at 390. There was ample support in the record for the court's conclusion that the Division did not ignore W.B.; rather, W.B. was slow to avail himself of the programs the Division recommended. He refused to attend family team meetings; and for months he failed to attend the substance abuse and family programs to which he was referred.

In affirming the trial court's order, we do not minimize the love that W.B. has for Walter. We also recognize his effort to maintain ties with his son in multiple visitations, and his eventual participation in programs to achieve reunification. However, those facts do not outweigh the significant evidence supporting the court's finding that the best-interests-of-the-child standard codified at N.J.S.A. 30:4C-15.1(a) was met. See R.G., supra, 217 N.J. at 554 (noting that the four-prong standard is intended to achieve the appropriate balance between parental rights and the court's parens patriae responsibility to protect the child).

W.B.'s remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 For convenience of the reader, and to protect the child's privacy, we refer to him by a pseudonymous first name.

2 T.D. voluntarily surrendered her parental rights to Walter and S.D. in the midst of the guardianship trial.