NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1609-13T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.T. and J.M.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.T., Jr., a minor.

___________________________________________________

December 22, 2014

Submitted December 9, 2014 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-51-13.

Joseph E. Krakora, Public Defender, attorney for appellant J.T. (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant J.M. (Albert M. Afonso, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (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 the minor (Sean P. Lardner, Designated Counsel, on the brief).

PER CURIAM

Defendants J.T. and J.M. both appeal a judgment, entered at the conclusion of a four-day trial in October and November 2013, that terminated their parental rights to J.T., Jr., who was born on May 7, 2011. J.M., the child's mother, argues that the Division of Child Protection and Permanency (the Division) failed to prove the third prong of N.J.S.A. 30:4C-15.1(a)(3) that the Division failed to make reasonable efforts toward reunification and that the judge erred in preventing her from calling certain witnesses, namely, the child's paternal grandmother and grandfather. J.T., the child's father, similarly contends the Division's proofs were insufficient on the third prong; he also argues the Division failed to satisfy the fourth prong termination of parental rights will not do more harm than good, N.J.S.A. 30:4C-15.1(a)(4). We find no merit in these arguments and affirm.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs

(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 . . .;

(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.

See also A.W., supra, 103 N.J. at 604-11.

By way of a thorough oral decision, Judge Madelin F. Einbinder found the Division demonstrated, through the submission of clear and convincing evidence, that all four prongs supported termination of defendants' parental rights.

Neither defendant quarrels with the judge's determinations on the first two prongs. We briefly observe that the child's father had been incarcerated most of the time following the child's removal in April 2012; at the time of trial in the Fall of 2013, he did not anticipate being released from incarceration for another ten months. The judge also found the child's father had an "inability to remain drug-free." Judge Einbinder described the child's mother as "unstable with psychiatric and drug issues." She found the child's mother "had been in treatment numerous times" and received "no benefits from it," and, based on the Division's expert's testimony, the child's mother would be unable "to avoid future relapse or be able to care for her son on an independent basis." For these and other reasons more fully recounted in her opinion, the judge concluded that the first and second statutory prongs were well-established.

In addition, the judge found that the Division made the reasonable efforts required by the third prong, N.J.S.A. 30:4C-15.1(a)(3). In light of our obligation to defer to a judge's factual findings when supported by the evidence, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998), we find insufficient merit in defendants' arguments that the judge erred in rejecting kinship legal guardianship which was inapplicable because the judge determined the relatives caring for the child were committed to adoption to warrant further discussion. R. 2:11-3(e)(1)(E). As to the fourth prong, the judge found that the child had been in placement for sixteen of the twenty-four months of his life and there was a bond between the child and his foster parents "stronger and more established than the bond" between the child and either natural parent circumstances that clearly and convincingly demonstrated that the termination of parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

We, thus, affirm substantially for the reasons set forth by Judge Einbinder in her thoughtful and well-reasoned opinion.1

Affirmed.

1We also find insufficient merit in the argument that the paternal grandparents were erroneously precluded from testifying. As the judge aptly held, the purported testimony dealt only with the placement of the child, and since the child had been placed with relatives and the grandparents were excluded as potential caregivers the testimony would have shed no light on the presence of the four statutory prongs.