NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.P.G.

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NOT FOR PUBLICATION WITHOUT THE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.

B.P.G.,

Defendant-Appellant,

and

K.E.F.,

Defendant.

IN THE MATTER OF THE

GUARDIANSHIP OF A.E.G.

and P.G.G.,

Minors.

January 2, 2014

Argued November 6, 2013 Decided

 
Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-02-11.

Sandra Bober, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Bober, on the brief).

Nora P. Pearce, Deputy Attorney General, argued the cause for respondent New Jersey Division of Child Protection and Permanency (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Pearce, on the brief).

David Valentin, Assistant Deputy Public Defender, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).

PER CURIAM

Defendant B.P.G., the father of A.E.G., born September 2004, and P.G.G., born December 2007,1 appeals the February 15, 2013 judgment terminating his parental rights. We affirm.

B.P.G. and the children's mother first came to the attention of plaintiff Division of Child Protection and Permanency (Division) on July 16, 2009, when an anonymous caller claimed that the parents had been using heroin and that one of the children's immunizations were not current. When contacted, B.P.G. and K.E.F. agreed to a substance abuse evaluation at their home on July 31, 2009, but were not at the address at the scheduled time.

On August 3, 2009, when interviewed by a Division worker, B.P.G. admitted using heroin every couple of days, and he appeared to be under the influence. K.E.F. said that B.P.G. used heroin "whenever he ha[d] money to get it." On August 6, the Division worker observed needle tracks on B.P.G.'s arms, and he tested positive for opiates. He acknowledged having begun to drink at age sixteen, and to having been a binge drinker. He used marijuana by seventeen, smoked crack cocaine by nineteen, and began to abuse Percocet and Vicodin by age twenty-eight. His heroin use began at age twenty-nine. B.P.G. had not worked in two and one-half years. The Division referred him to inpatient treatment and while he was awaiting medical clearance, the Division obtained emergency custody, care, and supervision of the children. The children were initially placed with a resource family; at the subsequent hearing, their maternal great-aunt and great-uncle, D.D. and X.D., volunteered their home. B.P.G. and K.E.F. were granted supervised visitation.

Because B.P.G. did not obtain the necessary medical clearance, his case at an inpatient facility was closed for noncompliance. On September 14, 2009, he again tested positive for opiates, and later admitted to using heroin. B.P.G. completed detox in September, but after a few days of inpatient treatment, left the facility against clinical advice. On October 5, 2009, B.P.G. entered the John Brooks Recovery Center, and tested positive for opiates. On October 14, he again tested positive, for opiates and for methadone. The following month, B.P.G. entered into a stipulation acknowledging that he used illegal drugs while caring for his children, and that such use placed the children at risk of harm.

B.P.G. was first evaluated on December 1, 2009, by Judith Washington, Ph.D. He was found to be suffering from psychoactive substance abuse, alcohol abuse, narcissistic personality disorder with obsessive compulsive personality features and anti-social personality features, use of drugs, and unemployment. Individual therapy and a parenting course were recommended. B.P.G. missed at least one subsequent appointment for a drug evaluation, although weekly supervised visitation continued.

On February 9, 2010, B.P.G. tested positive for morphine and propoxyphene. On February 18, 2010, B.P.G. was arrested for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).

On February 23, 2010, B.P.G. acknowledged his ongoing intravenous heroin use and marijuana use during an evaluation. He also acknowledged that he had shared needles ninety times in the prior six months and spent $900 on drugs in the prior thirty days. On February 25, 2010, he again tested positive for opiates.

On March 18, 2010, D.D. and X.D. informed the Division that they wanted to adopt the girls. On April 7, 2010, the parole authorities reincarcerated B.P.G. as a result of his ongoing heroin use. In April 2010, the Division informed B.P.G. that, because of his inability to comply with services, the case goal was going to be modified to termination of parental rights followed by adoption.

On May 5, 2010, B.P.G. was convicted of receiving stolen property, N.J.S.A. 2C:20-7, and sentenced to five years probation; he remained incarcerated. That same week, he entered guilty pleas to two counts of possession of heroin, N.J.S.A. 2C:35-10(a)(1). The conditions of his probation required successful completion of drug court; he entered a six-month residential treatment program at Integrity House.

The Division filed a complaint for guardianship. So long as B.P.G. continued in the drug treatment program, monthly visitation was permitted.

Allen J. Lee, Ph.D., conducted another psychological evaluation of B.P.G. on October 7, 2010. B.P.G. again admitted his lifetime polysubstance abuse including a 2002 discharge from the Marine Corps due to narcotics use. B.P.G. also explained he had been unemployed since November 2007 as a result of his drug use. Lee found that:

[B.P.G.] generally presents with a pattern of deeply ingrained and maladaptive personality and character traits that generally relate and contribute to his poor functioning, patterns of irresponsibility, and antisocial behavior. He presents as being an angry, hostile, suspicious, vigilant, and controlling individual. He presents as deeply self-centered, egocentric, and lacking in empathy while primarily seeking gratification of his own needs.

Lee diagnosed B.P.G. with impulse control disorder, history of polysubstance abuse, adjustment disorder with depressed mood, personality disorder with antisocial, narcissistic, and borderline features. Lee found B.P.G. was experiencing significant psychosocial stressors including his children's placement, criminal charges, juvenile delinquency, substance abuse, unemployment, straitened financial circumstances, and unstable housing. Lee recommended long-term individual and group therapy, a protracted anger management course, and a lengthy parenting course.

Lee completed the bonding evaluation between B.P.G. and his daughters, as well as the children and D.D. and X.D. He concluded that the children had developed positive psychological bonds with D.D. and X.D.

In contrast, Lee found that both girls had an ambivalent and insecure attachment to their father, not indicative of a "significant and positive psychological bond." Lee was uncertain if the children would suffer severe or enduring psychological or emotional harm if their relationship with B.P.G. was terminated.

On November 1, 2010, B.P.G. successfully completed the Integrity House program, and was referred by drug court to SODAT's intensive outpatient program (IOP). On November 8, 2010, B.P.G. began IOP and moved into his parents' home, shared with his brother and his brother's two children.

B.P.G. was evaluated by his own expert, Kenneth Goldberg, Ph.D., on November 15, 2010. Goldberg found that B.P.G. was progressing in managing his addictions, and that he should be able to care for his children within a reasonable amount of time. Goldberg also opined that the bond between the children and their father was quite strong, and that if it was terminated they would suffer enduring harm.

On January 20, 2011, P.G.G. refused to accompany her sister to a planned visit. This was the first of many such occasions. The Division worker did not physically force her into the car, so P.G.G. did not visit with her father. This happened again on February 16, 2011, at which time the great-aunt offered to allow B.P.G. to visit the children at her home. On February 23, 2011, however, the great-aunt informed the Division that she was upset because B.P.G. had called her cell phone and landline numerous times, despite her request that he only phone at dinner. That same day, P.G.G. again refused to go on a visit with her father. The following visit took place at a McDonald's, where the girls were driven by their great-aunt.

Based on his sobriety for approximately eleven months, B.P.G. requested unsupervised visitation. The request was denied. On May 11, 2011, B.P.G. visited the children at the great-aunt and great-uncle's home. A.E.G. later told her great-aunt that during the visit she had spoken to her uncle Jimmy, and that he had been hiding in her father's truck. B.P.G.'s brother has a history of criminal activity and substance abuse.

Because of this episode, D.D. and X.D. stopped permitting B.P.G. to visit the girls in their home. Although B.P.G. denied hiding his brother in the truck, he acknowledged that he had accompanied him on the visit, although he did not think that should have been a problem.

On May 17, 2011, B.P.G. was again evaluated by Lee. He was still living with his parents and was still unemployed. Despite B.P.G.'s thirteen months of sobriety, Lee did not support reunification. Lee's diagnosis did not change, and he recommended continued weekly psychotherapy, another anger management program, and parenting education classes.

The additional bonding evaluations Lee conducted established that A.E.G. recognized her father and enjoyed aspects of the relationship she shared with him. She did not have a parental bond such that she would likely suffer severe or enduring harm were the relationship to be terminated. P.G.G. had an insecure and ambivalent attachment with B.P.G. and was at low risk of harm if her relationship with him was severed. In contrast, the girls had a positive attachment with their caregivers and would suffer severe and enduring harm if those relationships were severed. The children had lived with the great-aunt and great-uncle, at that point, for a year and a half.

In June, B.P.G. began to miss appointments for treatment and with his probation officer. On June 16, 2011, he was remanded to the Burlington County jail for a seven-day drug court sentence. He resumed his heroin use. B.P.G. was incarcerated fourteen days in the Burlington County jail as a result of this relapse, and returned to IOP in the relapse phase of treatment.

That summer, B.P.G.'s trial counsel died, resulting in additional delay in the resolution of the matter. On September 1, 2011, B.P.G. told the Division that he could not care for the girls. In September 2011, B.P.G.'s mother died, he resumed his drug use, and failed to report for treatment. When the drug court ordered him back to jail, B.P.G. had six baggies containing suspected cocaine and prescription pills. He was discharged from his drug treatment program.

That November, B.P.G. refused to comply with an updated bonding evaluation; the children and the great-aunt and great-uncle were evaluated. Again, Lee concluded that if A.E.G. and P.P.G.'s relationship with their great-aunt and great-uncle was severed, they were at significant risk for severe and enduring psychological and emotional harm.

On December 22, 2011, B.P.G. was released from jail. By the following January, he was attending an outpatient treatment program three days a week and was fully employed. In February 2012, the Division located an individual therapist willing to provide services near B.P.G.'s home. B.P.G. told the therapist, however, that he was only available at night on Friday. He was barely "scraping by with gas money, etc." The therapist, not surprisingly, was unable to provide services under these limited conditions.

On February 28, 2012, at a permanency hearing, it was suggested that P.G.G.'s refusal to visit may have been because she did not want to be driven by a particular worker. Even when the driver was changed, however, P.G.G. continued to refuse to be transported to see her father.

On April 5, 2012, B.P.G. was incarcerated for supplying adulterated urine during a probation screen. B.P.G. admitted he had relapsed on a "bag of dope" the prior day.

On June 28, 2012, B.P.G. was sentenced to five years in state prison for violating probation conditions. On July 17, 2012, B.P.G. again objected to the fact that P.G.G. was not being brought on visits; the worker reiterated that she would not physically force the child into a car seat because she would scream, kick, and cry. Under the circumstances, the Family Part judge determined that nothing further could be done.

On October 26, 2012, Goldberg completed a psychological and bonding evaluation on behalf of B.P.G., concluding that he was doing well in his recovery from drug addiction and would be able to care for his children in a "reasonable amount of time." He recommended that the children remain with their great-aunt and great-uncle indefinitely, that B.P.G. remain in their lives, and the Division close its case.

The experts testified at trial generally in accord with their evaluations, reports, and recommendations. On the second day of trial, February 6, 2013, defendant submitted a letter A.E.G. had written to her father, stating as follows:

I love you more than anybody, so come on . . . . I don't want this to go on anymore . . . so please stop fighting for me. I do want to live with you but I think it is better for me to live without you but I think it is safe for me to live with [D.D] and [X.D.] . . . we can still visit so please stop fighting for me I will still love you. So please stop fighting for me!! Love you! (letter signed with picture of heart with arrow, smiling faces, music notes, and the word "kiss" multiple times).

As a result of this letter, B.P.G. sought to have a conflict Law Guardian appointed for A.E.G. The Law Guardian opposed the motion, and the judge denied it.

While the guardianship trial was ongoing, B.P.G. was released from prison and admitted to the intensive supervision program (ISP), and became employed. At the trial, he testified that he wanted to raise the children in his father's home, where the girls would share a fairly large room and live with their seven- and eight-year-old cousins. B.P.G. was willing to allow the great-aunt and great-uncle to remain involved in the children's lives.

Goldberg testified, contrary to Lee's position, that lack of contact can make a bond insecure, and that it was essential for the girls to continue to have B.P.G. in their lives. Although he testified that in his opinion severing the relationship would do more harm than good, he also recommended that the girls remain in the care of D.D. and X.D.

B.P.G. also sought to have A.E.G. testify. The Law Guardian and the Division opposed this application and opposed an in-camera interview. As a result, B.P.G.'s counsel moved for a mistrial, arguing that the Law Guardian was not fairly representing A.E.G., conveying her wishes, or ensuring that the child could express her feelings to the judge. The Family Part judge denied the applications, finding that the child's testimony was not crucial to her decision.

The court concluded that the Division by clear and convincing evidence had established, pursuant to the statutory four-part test, that it would be in the best interests of the children for parental rights to be terminated. See N.J.S.A. 30:4C-15.1(a).

I

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) (second omission in original) (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. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following:

(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.

These four factors "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. "The considerations involved in determining parental unfitness are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting K.H.O., supra, 161 N.J. at 348, certif. denied, 190 N.J. 257 (2007).

II

We concur with the trial judge's determination that the Division readily established statutory factors one and two, that the children's "safety, health or development has been or will continue to be endangered by the parental relationship" and that "the parent is unwilling or unable to eliminate the harm . . . and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(1), (2). B.P.G. was unable to maintain sobriety for extended periods of time, while knowing that as a result he faced not only the immediate consequence of incarceration, but the real possibility of losing his children. Ultimately, both occurred.

B.P.G.'s ongoing use of heroin posed a risk of harm to the children, which he was unable to alleviate. After some three and one-half years in placement, in part the product of the Division's willingness to give him the opportunity to engage in drug treatment, the children's need for permanency is all the greater.

As has been frequently stated, the Division need not wait until a child is irreparably harmed by parental inattention or neglect before acting. N.J. Div. of Youth & Family Servs v. F.M., 211 N.J. 420, 449 (2012). B.P.G. was unable to provide a safe and stable home for himself, much less for his children, after years of unemployment, was unable to secure employment except for the briefest periods of time or as a condition of ISP. As the judge said, as to prong two, B.P.G. "had many opportunities . . . to complete drug programs, to get off the drugs, [and] to change his life around," and B.P.G. "couldn't even successfully complete drug court when he knew that [it] held over him the possibility of incarceration." In our view, the Family Part judge's determination that prongs one and two were satisfied by clear and convincing evidence was warranted.

III

As to prong three, defendant contends that he did take advantage of services offered by the Division, but that the Division did not make sufficient efforts to maintain his visitation. The determination as to whether the Division has engaged in reasonable efforts to provide services to assist a parent in correcting the circumstances that led to the removal of children is fact-sensitive. See In re Guardianship of DMH, 161 N.J. 365, 390 (1999).

The Family Part judge found that the Division made reasonable efforts to assist B.P.G., and we agree. The Division offered counseling, treatment, and parenting classes. The Division provided B.P.G. with bus passes for transportation because he was unable to drive. He was even offered the privilege of visitation in the placement home, but lost that opportunity because of his own conduct. It is not reasonable to suggest that P.G.G. should have been physically forced to visit with her father. Separately from the Division's offers of services, B.P.G. was admitted into the drug court program, and given several opportunities to continue even after he relapsed. It was not until he was admitted into the highly structured ISP program that B.P.G. was able to stabilize at all. The court's conclusion is supported by the record the Division fulfilled its obligation to provide B.P.G. with the necessary services required by statute.

IV

Pursuant to the fourth prong of the best interests test, the Division must prove by clear and convincing evidence that the "termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (internal quotation marks omitted). The Supreme Court has stated "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." Ibid.

There comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. See K.H.O., supra, 161 N.J. at 355. The Supreme Court has held that "there will be circumstances when the termination of parental rights must precede the permanency plan." A.W., supra, 103 N.J. at 611.

We therefore concur with the Family Part judge's final judgment that termination of parental rights would not do more harm than good. The children were more closely bonded to their great-aunt and great-uncle, which was not surprising, given their young age and the amount of time they had spent in that home while B.P.G. was unavailable because he was using drugs, was in drug treatment programs, or was incarcerated.

We do not doubt the sincerity of B.P.G.'s attachment to his children. That attachment, however, was not sufficient to motivate him to arrange his life so as to offer his children a home. Contrary to what B.P.G. asserts, the court did not make a quantitative determination favoring the great-aunt and great-uncle because the children had lived longer with them than they had with their father. Even Goldberg, B.P.G.'s own expert, opined that the girls should not live with defendant, although he believed the children were bonded to their father. Hence he reasoned that they would suffer harm if that bond was severed, greater than the harm they would suffer if their bond with their great-aunt and great-uncle were severed. Nonetheless, he could not recommend that the children live with their father at that time. His opinion speaks volumes about whether termination would have done more harm than good.

Children are entitled to stability, and should not be compelled to wait indefinitely on a parent. These children had a need for permanency, a fragile bond with their father at best, and a strong, healthy bond with their caregivers. In this case, termination would not have done more harm than good, and this prong of the statutory test has also been met by clear and convincing evidence.

V

Finally, B.P.G. asserts that his due process rights were violated in a number of respects. He alleges that the Division's lack of compliance with court-ordered visitation for P.G.G. prejudiced the final outcome of his case. Again, we disagree. The Division changed the location of the visits in an effort to assuage the child's fears. The driver was changed. P.G.G. was always encouraged by her resource parents and Division workers to attend. That the Division, the Law Guardian, and the court ultimately respected the child's wishes protected her mental health and well-being, and in no sense did those decisions deprive B.P.G. of due process. We consider this point to be so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

B.P.G. also contends the court committed prejudicial error by refusing to appoint a conflict Law Guardian because A.E.G. wished to continue to see her father while P.G.G. did not. Again, A.E.G.'s wishes, although an expression of the love all acknowledged that she feels towards her father, did not warrant appointment of a conflict Law Guardian. In fact, if anything, the letter supported the Family Part judge's ultimate conclusion that termination was necessary. In the letter the child expressed her love and desire for ongoing contact, but repeated her desire that her father stop his efforts at "fighting" the termination proceedings. Just because the child wanted to continue to see her father, that did not, without more, require the appointment of a conflict law guardian.

B.P.G. also argues that the court should have interviewed A.E.G. The judge permitted Lee and Goldberg to testify on the subject. Goldberg stated that subjecting an eight-year-old child to an interview in a termination case such as this one would have been detrimental to her mental health. Lee stated that her testimony would not have been useful. Having heard from these experts, it was a reasonable exercise of the judge's discretion to have determined that an interview was not necessary to reach a decision or in the child's best interests. A trial judge's evidence rulings are upheld absent abuse of discretion. See State v. J.D., 211 N.J. 344, 354 (2012). The judge did not abuse her discretion by refusing to interview a nine-year-old child in this termination case. This claim has no merit.

B.P.G. also contends that the court erred in denying his request for a mistrial when the Law Guardian did not advocate for A.E.G.'s position to the court. A.E.G.'s position was not as B.P.G. characterizes it; the law guardian's very purpose was to advocate for the child's position in the manner she found to be in the child's best interest. See Div. of Youth & Family Servs. v. M., 347 N.J. Super. 44, 70 (App. Div.) ("Law guardians are obliged . . . to make recommendations as to how a child client's desires may best be accomplished, [and] to express any concerns regarding the child's safety or well-being . . . ."), certif. denied, 174 N.J. 39 (2002).

Affirmed.

1 K.E.F., the children's mother, surrendered her rights on August 10, 2010, and is not involved in this appeal.