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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02159-13T3

A-2160-13T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,1

Plaintiff-Respondent,

v.

J.J.C. and M.G.R.,

Defendants-Appellants.

_____________________________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.T.C., a minor.

_______________________________________________________________

November 13, 2014

Submitted October 7, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-5-14.

Joseph E. Krakora, Public Defender, attorney for appellant J.J.C. (Eric R. Foley, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant M.G.R. (Michele C. Buckley, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.T.C. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants J.J.C. (Jerry)2 and M.G.R. (Michelle) separately appeal from a December 19, 2013 Family Part judgment of guardianship, which terminated their parental rights to their son J.T.C. (Jason) and awarded guardianship to the Division of Child Protection and Permanency (the Division).3 Defendants contend that the Division did not demonstrate by clear and convincing evidence the four prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a). The Law Guardian supports termination and urges us to affirm the trial judge's determination. Having reviewed the record in light of the contentions of the parties and the applicable law, we affirm.

The Division first became involved with this family in 2005 regarding their two older children, born in 2003 and 2005. A hospital contacted the Division to report that Jerry and Michelle's baby had been admitted to the hospital due to her failure to thrive. Additionally, the staff was concerned about the parent's ability to parent due to cognitive limitations. The Division investigated, removed the children from the parents' custody, and substantiated abuse and neglect. A medical assessment of the older child revealed developmental delays and substantial weight loss.

Psychological and psychiatric evaluations on both parents disclosed cognitive limitations and serious mental health issues. After unsuccessful efforts at reunification, the Division filed for guardianship of the two children as well as a third child born in 2007. The parents surrendered their parental rights to the children to Jerry's aunt and uncle, E.B. (Evelyn) and P.B. (Paul), who subsequently adopted the three children.

Jason was born five weeks premature in May 2012. The Division assessed the parents but then removed the child due to the parents' history of substantiated neglect, mental health issues, cognitive limitations, and inadequate housing. The child was placed with Evelyn and Paul, over the objection of both parents. The resource parents have requested to adopt Jason.

The Division had several family team meetings with the parents and agreed to provide visitation, parenting classes, psychological evaluations, and therapy. The parents requested that Jerry's sister Phyllis be assessed as a resource parent for Jason. The Division began an interstate investigation but stopped when Phyllis told the Division she was not able to care for the child.

Dr. Alan S. Gordon, Ed.D., performed psychological evaluations of both parents. The doctor found that Michelle had an IQ in the mild mentally retarded range of intelligence and a psychological dysfunction of the mild to moderate severity. He found that Jerry had a mild cognitive limitation but was experiencing a severe mental disorder. The doctor concluded that neither parent could alone or with the other parent safely care for a child on an ongoing basis.

The parents participated in therapy with Jeffrey B. Allen, Ph.D. After several months, the doctor observed that they had put in great effort but "they have made very little progress towards the goal of preparing themselves to be the primary caretakers for their son[.]" He concluded that neither parent was "capable intellectually of learning the skills and making the changes necessary to act as sole caretakers."

The Division filed a guardianship complaint against Jerry and Michelle for termination of their parental rights to Jason on August 7, 2013. Judge William Anklowitz held the three-day guardianship trial in December 2012. At the trial, a caseworker, Dr. Allen, and Dr. Barry Katz, a psychologist, testified for the Division. Dr. Andrew Brown, a neuropsychologist, testified for Jerry.

On December 19, 2013, Judge Anklowitz issued a comprehensive written opinion terminating Jerry's and Michelle's parental rights to Jason. The judge concluded, based upon the best interests of the child test set forth in N.J.S.A. 30:4C-15.1(a), that there was clear and convincing evidence that both parents' rights should be terminated so that Jason could be adopted. This appeal followed.

In a guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007). When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing by clear and convincing evidence that

(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.

[Ibid. See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010)]

These factors are not discrete or separate elements, but should be considered together to provide a complete picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 167 (2010); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

On this appeal, our review of Judge Anklowitz's decision is limited. Ordinarily, we will defer to a trial judge's factual determination unless those findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted).

We owe this deference to the trial judge because he has had "the opportunity to make first-hand credibility judgments" and to gain a "'feel of the case'" over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Gauged by those standards, we find no basis to disturb Judge Anklowitz's credibility determinations, his factual findings, or his conclusion to terminate Jerry's and Michelle's parental rights.

From our independent review of the record, we agree that substantial evidence exists to support the judge's conclusion. We affirm essentially for the reasons expressed in Judge Anklowitz's thoughtful and thorough opinion. We add only the following comments.

The first prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(1) requires us to "determine whether the 'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)); see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The second prong relates to parental unfitness and requires the court to decide "'whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).

Dr. Katz testified that Michelle was not able to provide the care necessary to meet Jason's needs as she was barely able to meet her own needs. He based his opinion on her intellectual deficiencies, maladaptive behaviors, lack of awareness of children's basic needs, history of being unable to care for her older children, and her lack of awareness of past problems with her older children.

Dr. Katz found that Jerry was also unable to parent or meet the child's needs. In forming this opinion, Dr. Katz considered Jerry's cognitive limitations, his lack of insight into past issues with parenting the older children, his tendency to blame his problems on others, his issues of poor control of anger with a potential for violence, his ongoing lack of stability, and the strong probability that his poor functioning would get worse with the added stress of a child.

According to Dr. Katz, Jerry and Michelle combined would not be able to parent because "neither parent is able to compensate for the deficits of the other." Dr. Katz also performed bonding evaluations and found that Jason was familiar with but not bonded to either parent. In contrast, he concluded that Jason viewed the current caretakers "as parental figures and as his primary [nurturing] figures", meaning they were the people to whom he was emotionally tied.

Dr. Brown, Jerry's expert, testified that Jerry had above average intelligence but his IQ test results were artificially low because he had a significant learning disability which interfered with his reading and comprehension ability. The doctor opined that all of Jerry's former diagnosis could be traced to ADHD, which could be treated by medication to maximize his potential as a parent. Dr. Brown also performed a bonding evaluation between Jerry and Jason and concluded that they were bonded.

The trial judge found several inconsistencies in Dr. Brown's testimony and determined that Dr. Katz' testimony was more credible. He also credited Dr. Katz' determination that Jason was bonded to his resource parents but not to his biological parents because Dr. Brown did not do a comparative bonding. Despite Jerry's claim that the judge's credibility findings were erroneous, we defer to the trial judge's credibility determination as they are supported by the record and not "so wide of the mark that a mistake must have been made." M.M. supra,, 189 N.J. at 279 (internal quotation marks and citations omitted).

As to the first and second prongs, the evidence is clear and convincing that Michelle's cognitive impairment, mental health issues, poor judgment, and inability to meet children's needs harmed Jason and that, as of the time of the trial or in the foreseeable future, Michelle was not and would not be able to safely parent Jason. Further, the evidence is also clear that Jerry's cognitive impairment, lack of insight, anger and control issues, poor functioning and instability harmed Jason and that, at the time of the trial, Jerry was not and would not be able to safely parent the child.

The third prong contemplates that the Division will make reasonable efforts to assist the parents to correct and overcome the circumstances that led to the child's removal. K.H.O., supra, 161 N.J. at 354. Judge Anklowitz found that the Division had provided the parents with appropriate services under the circumstances but their limitations prevented the parents from benefitting. We agree. The record shows that the Division worked with both Jerry and Michelle to promote reunification by providing visitation, parenting class, psychological evaluations, and therapy. All the same, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393.

Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "the child will suffer a greater harm from the termination of ties with her [or his] natural parents than from the permanent disruption of her [or his] relationship with her [or his] foster parents." K.H.O., supra, 161 N.J. at 355. We are in accord with Judge Anklowitz that, balancing the lack of harm to Jason from the termination of Jerry's and Michelle's parental rights with the benefit of remaining in a stable permanent home with his siblings, termination of parental rights will do much good and minimal harm. A child cannot wait for a parent to become fit. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).

In sum, we conclude that Judge Anklowitz did not err in determining that Jason's best interests require termination of Jerry's and Michelle's parental rights so that he can be adopted by his present resource parents.

Affirmed.

1 Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 We use pseudonyms to protect the privacy of the family.

3 Defendants' appeals are consolidated for purposes of this opinion.