NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. V.B.

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NOT FOR PUBLICATION WITHOUT THE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.

V.B.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.W., a minor.

__________________________________

September 23, 2015

Submitted September 17, 2015 - Decided

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-43-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel DiLella, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Leah Schmidt, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Danielle Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant V.B. appeals from an October 8, 2014 judgment of guardianship, supported by the court's memorandum decision, terminating his parental rights and placing his minor child A.W. in the custody of plaintiff, the Division of Child Protection and Permanency (the Division), to secure the child's adoption.1 Prior to the guardianship trial, A.W.'s mother, S.C., executed a voluntary surrender of her parental rights and has not participated in this appeal.

Defendant is a cognitively challenged adult. He maintains the trial judge erroneously concluded he was incapable of raising A.W. and also failed to properly consider defendant's mother, J.W., as a placement resource. Defendant argues the Division's evidence was insufficient to satisfy the requisites of the statutory test to support a judgment terminating his parental rights. We considered all issues raised, in light of the record and applicable law. We affirm.

The following facts are found in the record of the guardianship proceedings. Defendant is the biological father of A.W., who was born in 2012. Defendant was awarded joint legal custody of his older child S.W., which he shares with J.W. and S.W.'s mother. However, the same order places S.W. in the physical custody of J.W., who is designated the parent of primary residence and required to supervise defendant's interactions with the child.

From A.W.'s birth, he was placed in the Division's care and custody, primarily because S.C. lacked the capacity to function as a parent. A.W. remains with the same resource mother, C.O., who has custody of S.C.'s two other children. C.O. is S.C.'s maternal aunt.

The Division's involvement with the family identified concerns regarding housing conditions, defendant's substance abuse, and cognitive challenges that impeded his parenting abilities. Although defendant achieved sobriety immediately prior to trial, the Division's evidence clearly and convincingly showed barriers remained precluding his ability to remain abstinent and otherwise provide A.W. a safe, secure, and healthy home.

Shortly after A.W.'s birth, J.W. requested consideration as a placement resource for A.W. The Division inspected J.W.'s apartment and found it inadequate for an infant. Residing in the cluttered, unkempt, roach-infested one-bedroom unit were four adults: J.W., S.C., defendant, and his older brother, along with then five-year-old S.W. In the October 25, 2012 letter, J.W. was informed she was "ruled-out" as a resource placement for A.W. because of safety and health concerns identified as "a lack of space, [the] condition of the home," and because A.W. was "currently placed with a relative and his siblings." The notification included the procedure to challenge the determination and advised J.W. she should inform the Division if circumstances changed, warranting additional consideration. Not stated in the letter was J.W.'s prior history with the Division, which had substantiated her conduct toward her children as abuse or neglect.

J.W. did not challenge the denial. Instead, she filed a custody complaint under a separate non-dissolution docket number. The request, assigned for review by the same judge considering the Division's Title 9 complaint, was denied without prejudice, after a hearing. The judge found J.W.'s home lacked space and offered "deplorable" living conditions, unsatisfactory for a newborn. Further, J.W. was involved in a separate Title 9 action filed by the Division regarding S.W.'s care.

J.W. and defendant left the one-bedroom apartment to live in a motel room and later moved to J.W.'s mother's home. This residence was inspected by the Division who found it too lacked sufficient space. The Division notified J.W. it declined to place A.W. in her home. The March 28, 2014 correspondence stated the Division determined A.W.'s best interests dictated the child remain in the current placement because "[A.W.] has been placed with a maternal aunt since birth and also is with [the child's] siblings."

At defendant's request, the residence was re-inspected in May and August 2014. The Division noted S.W. slept in the single bedroom with J.W.'s mother and J.W. and V.B. slept on the couch. J.W.'s two grandchildren were also present. By August, the conditions further deteriorated and space was further compromised when defendant's brother joined the household. Defendant disclosed his brother smoked marijuana daily and drank alcohol. The next day, a follow-up inspection to determine the number of bedrooms was cut short when J.W. and her mother denied the Division access to all rooms.

Throughout the litigation, defendant and J.W. insisted the residence was only temporary as their original apartment was being renovated. Alternatively, defendant suggested he was searching for a bigger apartment. Neither of these claims reached fruition.

Another barrier to reunification was defendant's admitted marijuana use. He stated he smoked "to clean out his system." Defendant's two February 2013 urine screens tested positive for marijuana.

The Division referred defendant for a substance abuse evaluation, treatment, and continued random drug screens. He attended the evaluation and was recommended for Level I outpatient treatment. However, defendant did not attend treatment and was terminated for noncompliance. A second referral for a substance abuse assessment and treatment was made in March 2013. Again, defendant attended the intake appointment confirming the need for treatment, but he declined to participate. Later referrals for similar services were made in June 2013, November 2013, and April 2014.

The final assessment, which initially recommended Level I outpatient treatment, was modified to recommend Level II treatment. Defendant agreed to attend the substance abuse rehabilitation sessions. His May 2014 urine screens tested positive for marijuana, but ultimately defendant obtained sobriety and completed treatment. Concerns for relapse were high because defendant's brother remained a regular substance abuser and resided in the household. Defendant had not developed a strategy to remain abstinent and was instructed to call the Division daily to inquire whether he should report for a urine screen. He stopped checking-in and did not participate in testing requests as of August 2014.

Defendant's cognitive delays were also assessed and noted to impede his ability to engage A.W. and develop life skills necessary for the child's parenting, including routine events such as the comprehension of correspondence from professionals, obtaining medical insurance, and recognizing and addressing medical needs. The Division issued a referral for parenting, household, and independent life skills training. It also provided support for housing, employment and community resources. This assistance enabled defendant to secure employment at the Family Dollar Store. Unfortunately, he was limited in his ability to comprehend necessary tasks and was fired. Defendant ceased attending classes and was terminated for non-compliance. He also ignored a subsequent referral to a similar program.

Defendant admits he is unable to independently care for A.W.; however, psychological testing and evaluations found him dependent on J.W. for his own daily care. The April 2014 evaluations by the Division's psychological and intellectual consultation expert, Roger T. Barr, Ed.D., confirmed this dependence, noting defendant required guidance and supervision to achieve his daily functioning.

During supervised visitations, defendant was easily distracted. The supervisor frequently requested he cease cell phone use and often redirected him to look after A.W. rather than conversing with other parents in the program. One recorded instance showed defendant was talking to someone and lost sight of A.W., requiring staff to locate the child, who was standing atop a table across the room.

Training did not improve defendant's parenting skills, which remained "stagnant." Defendant acknowledged he is "not able to parent [A.W.] without supervision." Additionally, events under defendant's control were ignored. He failed to attend A.W.'s early intervention assessment, delaying implementation of identified needs for speech and cognitive therapy. From August 15, 2014, defendant ceased attending supervised visitation. Also, J.W. neglected to arrange Sunday visits, which she was to supervise.

Dr. Barr also conducted bonding evaluations. The expert concluded A.W. was familiar with defendant, but did not view him as a caretaker, and opined no harm would result if the parental relationship was severed. On the other hand, A.W. was securely bonded to C.O., and removing the child from her care would result in "serious and enduring" harm. C.O. expressed her desire to adopt A.W.

Trial commenced on August 12, 2014 and continued for four, non-consecutive days. The Division presented the facts recited above through testimony from C.O., its caseworker, and Dr. Barr. Neither the Law Guardian nor V.B. presented additional evidence.

The trial judge issued a written memorandum opinion evaluating the evidence. Crediting the Division's witnesses, he concluded the Division carried its burden of presenting clear and convincing evidence and that the best interests of A.W. were served by terminating defendant's parental rights. The trial judge awarded guardianship to the Division to allow C.O.'s adoption of A.W. Defendant's appeal followed.

We fully recognize parents have a constitutionally protected right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating parents have a fundamental liberty interest in raising their children). Both the federal and the New Jersey constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

"[T]he right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. As evidenced by child abuse and neglect cases, some parents may act against the interests of their children. When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

The Legislature has recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). While recognizing the fundamental nature of parental rights, and the need to preserve and strengthen family life, more recently, "'[t]he child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)).

"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State establish each of the following standards by clear and convincing evidence before parental rights may be severed

(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.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

The four criteria are not discreet and separate, but overlap to provide a comprehensive standard to identify a child's best interests. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). The statute's four parts "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 are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances present in each case. Ibid. (citations omitted). Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506.

The scope of this court's review of a determination terminating a parent's rights is limited. "When a biological parent resists termination of his or her parental rights, the [trial] court's function is to decide whether that parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The factual findings which undergird such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." R.L., supra, 388 N.J. Super. at 89.

Guided by these legal standards, we turn to defendant's challenges to the sufficiency of the Division's evidence and the factual findings of the trial judge, in light of its obligation to satisfy each statutory prong.

Specific to the first two prongs of the statutory test, defendant argues the Division failed to prove he acted in any way to endanger the child's health and development. He also challenges the evidence relied upon to suggest he was unable to parent A.W. independently, which was conceded. He contends the judge did not consider his proposal to care for the child with the assistance of J.W. He also maintains the Division's concerns regarding the home were invalid because they resulted solely from poverty, which should never impede a parent's right to raise his child.

We have fully reviewed these arguments, which we find unavailing. We agree with the trial judge who determined the Division's evidence clearly and convincingly showed defendant's acts and omissions harmed A.W. and even with his mother's aid, defendant could not offer the child permanency in a safe, stable, and secure home.

The first two prongs of the best interests test address the harm caused to the children and a parent's failure to mitigate that harm. N.J.S.A. 30:4C-15.1(a)(1), (2). The focus of the first prong examines the impact of harm caused by the parent-child relationship on the child's health over time. P.P., supra, 180 N.J. at 506. The harm facing the child "need not be physical . . . . Serious and lasting emotional or psychological harm to [a] child[] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, a "parent's 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." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting . . . ." Ibid.

Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. See also J.C., supra, 129 N.J. at 26 (noting children have "an essential and overriding interest in stability and permanency"). This requires the "best interests" test be "viewed in light of amendments to N.J.S.A. 30:4C-15, which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. 301, 671(16), 675(5)(A)(ii)." 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). These amendments clarify "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). To this end, "the attention and concern of a caring family is 'the most precious of all resources[,]'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613).

In this matter, the Division's efforts to address defendant's substance abuse are well-documented. For years, he ignored the need to cease drug use despite the problems drug use posed to achieving reunification with A.W. It was not until June 2014 that defendant achieved sobriety, when A.W. was almost two years old. Expert testimony related the likelihood of relapse because defendant regularly smoked marijuana for many years and was exposed daily to marijuana through his brother's abuse. Defendant could not develop a relapse strategy, so the Division required him to call every day to report for a urine screen. His new found sobriety appeared short lived because he stopped calling and submitting to tests as of August 2014.

Housing also thwarted reunification efforts. Defendant's residences were unacceptable. We do not agree the overcrowded unkempt living conditions resulted from poverty. The Division and the court found the home unsafe for S.W., making it untenable to subject A.W. to the same environs. Although housing location assistance was extended, defendant and J.W. would not consider locating to a residence separate from his drug-addicted brother and insisted their original home was being renovated.

Directed efforts to aid defendant to acquire gainful employment also failed. He was fired from his job at the Family Dollar Store after only a few months.

Defendant's cognitive deficits impeded his ability to parent A.W. The trial judge's opinion delineates instructional efforts aimed to increase basic parenting skills along with defendant's lack of progress. Dr. Barr detailed defendant's reliance upon his mother. He identified the two were unable to transcend this relationship. Despite his expressed desires to do so, his dependence ensured he would not achieve independent living.

Although defendant is blameless, his condition cannot serve as a defense to termination of parental rights when the best interest of the child mandates such a result. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Otherwise, such a defense would "improperly elevate the rights of the parent above those of the child." Id. at 442. Overall, defendant's developmental disability and resistance to accepting services, such as drug relapse prevention, made him unable to care for A.W. or any other child.

Defendant insists he, together with J.W., could provide for A.W., but the Division arbitrarily ruled her out because of a decades-old substantiation she committed abuse or neglect. We reject this claim as unfounded. The record shows J.W. was ruled out because she did not have a satisfactory home, continued to allow defendant's drug addicted brother to remain in the household, and she rejected suggestions to change these conditions. J.W. was involved in protective custody litigation regarding her care of S.W. Increasing J.W.'s responsibilities by adding the care of another child was unacceptable.

As noted by the trial judge, the uncontroverted evidence clearly and convincingly showed defendant's inability or unwillingness to assure sobriety by failing to participate in drug screens and continuing in a household with a daily drug user. Further, even with J.W.'s assistance, he could not provide a safe household for S.W., making them equally unable to offer A.W. permanency. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996). The court's findings regarding satisfaction of the first two prongs will not be disturbed.

The third prong of the best interests test contemplates efforts focused "on reunification of the parent with the child" and provision of individualized "assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. The myriad of services extended to defendant in an effort to achieve reunification were clearly articulated in the trial judge's opinion. We determine defendant's challenge to the nature and extent of services extended lacks merit. R. 2:11-3(e)(1)(A).

The third prong also requires the court to consider alternatives to the termination of parental rights, N.J.S.A. 30:4C-15.1(a)(3). This could include the children's placement with a relative caretaker, N.J.S.A. 30:4C-12.1(a), or establishment of a kinship legal guardianship, N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010). "Reasonable efforts depend on the facts and circumstances of each case." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 557 (2014) (citation omitted).

Defendant provided possible placements for A.W. All were investigated by the Division, but found unacceptable. The Division notified the individuals, none of whom appealed that administrative determination.

Defendant argues J.W. was "not really given a chance." We disagree. When the Division attempted to discern the nature of their current residence, J.W. and her mother denied access to some rooms, apparently hiding something. Additionally, J.W. consistently maintained she was getting a more suitable residence or asserted the original apartment was being renovated. These speculative statements reflect a recognition of the need for suitable housing, which was never sought or obtained. J.W. also allowed her drug-abusing son to join the household.2 When advised his presence posed a safety hazard for S.W. as well as A.W., she never saw fit to alter the situation. Even though ample time elapsed to achieve a change of these circumstances, the record shows J.W. did not remedy the barriers to A.W.'s placement in her home.

Most tragic was defendant's and J.W.'s abandonment of engaging in visitation. Before trial, no efforts were taken to see A.W. As the trial judge stated, "[u]nfortunately, the family has not taken the steps necessary for reunification despite the efforts of the Division." Thus, prong three was satisfied.

The final prong of the statutory best interests test assesses whether "[t]ermination of parental rights will not do more harm than good" to the child. N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question to be addressed "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. To satisfy this prong, the State should present a "well qualified expert who has had [a] full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the [resource] parent[]." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (citations and internal quotation marks omitted).

Uncontroverted proofs support the Division proved by clear and convincing evidence A.W.'s best interests were served by terminating defendant's parental rights to allow the child's adoption by his resource mother. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008) (reciting the State's "heavy burden" to demonstrate granting guardianship is in the child's best interests). Relying on Dr. Barr's expert opinion and the results of his bonding evaluations, the judge concluded A.W. "would suffer greater harm from the permanent disruption of a relationship with his resource mother than [from] termination of [the] ties with [defendant]." He concluded adoption by C.O. would allow A.W. to achieve permanency in the only home he has ever known, cared for by the person he identified as his mother, and surrounded by his siblings.

We conclude that the trial judge's findings supporting the conclusion the Division clearly and convincingly satisfied the four-prong test outlined at N.J.S.A. 30:4C-15.1(a) were supported by the unrefuted evidence of record. His conclusion to terminate defendant's parental rights grounded on these facts properly applied the law. We reject defendant's arguments and determine no reason to disturb the final judgment awarding the Division's request for guardianship of A.W.

Affirmed.

1 The Division's involvement with the family occurred prior to the passage of the June 29, 2012 legislation, which reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). To avoid confusion we refer to the Division by its current name.

2 It is unclear what defendant suggests by stating this could have been cured by "simply ordering the brother out of the apartment." The brother was not subject to the court's jurisdiction. Any "order" that he leave should have been made by J.W. or her mother.