New Protection v. J.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1407-14T3

New Jersey DiviSION of child

Protection and permanency,

Plaintiff-Respondent,

v.

J.W. and M.J.H.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.M.A.R. and D.N.A.W., minors.

____________________________________

November 24, 2015

Submitted October 20, 2015 - Decided

Before Judges Reisner, Leone and Whipple.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-04-14.

Joseph E. Krakora, Public Defender, attorney for appellant J.W. (Amy R. Kriegsman, Designated Counsel, on the briefs).

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

John J. Hoffman, Acting Attorney General, attorney for respondent D.C.P.P. (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jennifer K. Russo-Belles, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendants J.W. and M.J.H. appeal from an October 29, 2014 order terminating their parental rights to their daughter, D.N.A.W. (Dana), who was born in 2012.1 M.J.H. also appeals from another provision of the order, terminating her parental rights to her daughter A.M.A.R. (Alana), who was born in 2009.2 The Division of Child Protection and Permanency (Division) and the children's Law Guardian both urge that we affirm the order on appeal.

Having reviewed the record, we conclude that the trial judge's factual findings are supported by sufficient credible evidence, and in light of those factual findings, his decision "falls squarely within the permissible bounds of discretion accorded to the family court." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 454 (2012). Accordingly, we affirm substantially for the reasons set forth by Judge John R. Rauh in his oral opinion issued on October 27, 2014.

I

The trial evidence, which the judge credited, is detailed in his opinion.3 We summarize the most pertinent facts, and the judge's findings. M.J.H. is developmentally disabled, with an I.Q. of 58. She suffers from bipolar disorder, for which she has refused medication, and she has a long history of drug addiction. M.J.H. has repeatedly become involved with physically abusive paramours, including Alana's father and J.W. At the guardianship trial, M.J.H. testified that while they were together, J.W. used to hit her in front of Alana. The child found that domestic violence frightening.

The Division took custody of Alana and Dana in 2012, and placed them in foster care, after R.R., another one of M.J.H.'s paramours, assaulted her in the presence of both children. M.J.H. was highly intoxicated at the time of this incident. J.W. could not care for Dana, because he was incarcerated for a previous assault on M.J.H., and he was subject to a domestic violence restraining order. At the guardianship trial, J.W. admitted that he was also criminally convicted as a result of that incident.

Although she had opportunities to visit the children, M.J.H. failed to visit them on a consistent basis. Dr. Cahill, the Division's expert psychologist, testified that M.J.H. does not have a strong bond with her children and is incapable of acting as their parent. On the other hand, both children have a strong bond with their foster parents, who are committed to adopting them.4 The children have lived with this foster family since 2012, which for Dana is virtually her entire life. Termination of the children's relationship with the foster family would cause them lasting and serious harm, which M.J.H. could not mitigate. On the other hand, the foster parents could mitigate any harm that the children would suffer if M.J.H.'s rights to them were terminated. With respect to M.J.H., Judge Rauh found that the Division had satisfied the four prongs of the test set forth in N.J.S.A. 30:4C-15.1(a), and that termination of M.J.H.'s parental rights was in the children's best interests.

J.W. has a long history of drug addiction, although his addiction was in remission at the time of the guardianship trial. As previously noted, he had a history of domestic violence against M.J.H. He also had a long history of unemployment and unstable housing. At the guardianship trial, the assigned case worker testified to the many services the agency had provided to J.W. and M.J.H. She testified that the Division did not directly provide housing, but had referred J.W. to the Board of Social Services with a request that the Board assist him in finding housing.

When the guardianship trial began, J.W. was employed but was living with a cousin who had a felony conviction. J.W. admitted knowing that the child could not live in the same household as the cousin. For that reason, he had not asked the Division to evaluate his home. By the end of the trial, J.W. was unemployed and was living with his godmother, whom he planned to use as a babysitter for the child. However, the godmother had a substantiated history with the Division, and the Division concluded she was not an appropriate caretaker for a child.

Shortly before the trial began, J.W. suggested one of his nieces as a possible foster placement for Dana. The Division determined, and Judge Rauh agreed, that the niece would be an inappropriate placement because the child had never met her. It would not be in Dana's best interests to be separated from her foster family and placed with a stranger.

In applying the four prongs of the best interests test, Judge Rauh recognized that J.W. was devoted to Dana, visited her regularly, and interacted with the child in an affectionate manner. However, the judge also considered J.W.'s lifelong inability to maintain stable employment or housing, and his general inability to handle any type of complex life issue. The judge credited Dr. Cahill's opinion that, due to J.W.'s significant cognitive limitations, he would be unable to support Dana financially, plan for the child, including arranging daycare and transportation, or meet the child's other practical needs. Dr. Cahill testified that, when asked, J.W. was unable to articulate any plan for reunification with the child, beyond saying that he "would get on it." The judge found that J.W. "simply lacks the basic ability to provide the necessities of life for the child."

Based on all of the evidence, including J.W.'s trial testimony, Judge Rauh concluded that J.W. could function as a "loving babysitter" but not as a parent. The judge found that the Division had provided J.W. with a multiplicity of services, but no amount of services could change the cognitive limitations which prevented him from acting as a parent. Judge Rauh concluded that although J.W. cared deeply about Dana, he was incapable of managing his own life, much less parenting a child.

Addressing the fourth prong, the judge acknowledged that the child would be harmed by the loss of a relationship with her father, but concluded that termination would not do more harm than good

[I]f I were to continue the parental relationship insofar as [J.W.] is concerned, . . . I don't [find] any reasonable prospect that he's going to be able to effectively parent [Dana]. And not today. Not next week. But, really, ever. And if we continue that parental relationship, [Dana] will be [deprived of] stability and permanency.

II

To justify termination of parental rights, the State must produce clear and convincing evidence to satisfy the following four prongs of the "best interests" test

(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).]

The four prongs "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," with parental fitness being the key issue. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "[D]eterminations of parental fitness are 'extremely fact sensitive' and require particularized evidence." Ibid. (citation omitted). Ultimately, "the purpose of termination is always to effectuate the best interests of the child, not the punishment of the parent." Id. at 350.

In reviewing Judge Rauh's decision, we do not write on a clean slate. We must defer to his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We acknowledge that the trial judge, who heard the witnesses testify, "has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted). We owe deference to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we will not disturb a judge's findings unless they are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). After reviewing the evidence in this case, we find no basis to second-guess Judge Rauh's decision with respect to either parent. See F.M., supra, 211 N.J. at 448-49.

On this appeal, M.J.H. raises the following arguments

I. THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATION [OF] M.J.H.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. THE COURT MISAPPLIED THE PREVAILING LEGAL STANDARDS AND THE DIVISION FAILED TO PROVIDE REASONABLE EFFORTS TOWARDS REUNIFICATION UNDER THE THIRD PRONG OF THE BEST INTERESTS STANDARD.

B. THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

M.J.H. contends that the Division failed to provide her with specialized services to address her cognitive and learning disabilities. She also criticizes the children's foster family, asserting that the foster father is insufficiently attentive to the children. Those arguments are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. R. 2:11-3(e)(1)(E).

The Division offered M.J.H. multiple services including a domestic violence program, which she failed to attend, a parenting skills program, which she did not attend, and inpatient drug treatment, which she declined. M.J.H. did attend an intensive outpatient drug program, but did not report for random drug tests. She also declined medication or other treatment for her bipolar condition. M.J.H. contends that the Division should have contacted the Division of Developmental Disabilities (DDD) to seek assistance for her, so that she could protect herself from abuse in the future. However, M.J.H. does not cite any record evidence that assistance from the DDD would enable her to function as a parent.

The record reflects that the children's foster father could have been more cooperative during the bonding evaluation. Apparently, he was in the midst of a work-related emergency and he spent time on his cell phone for a portion of the session with Dr. Cahill. However, he then returned his attention to the bonding evaluation and, according to Dr. Cahill, his interaction with the children was appropriate.

Dr. Cahill observed that the foster father worked outside the home and supported the family, while the foster mother was a homemaker. The father explained to Dr. Cahill that he had a business to run and he had to earn enough money to eventually pay for Alana's and Dana's college education. She considered that as evidence of his long-term commitment to the children. Dr. Cahill opined that the foster mother was an extremely capable, loving, and attentive parent, and the foster father was an adequate if not outstanding parent. Dr. Cahill further opined that the children had a parent-child bond with both foster parents, although they had a particularly strong bond with the foster mother.

The Division case worker also confirmed that the children were thriving in their foster placement. They share a bond not only with their foster parents, but with each other and with their half-sister, whom the family adopted. By contrast, they do not have a similar bond with M.J.H., and she is incapable of acting as their parent. We find no error in Judge Rauh's conclusion that termination of M.J.H.'s parental rights is in Alana's and Dana's best interests.

In his appeal, J.W. raises the following issues

I. THE TRIAL COURT ERRED IN FINDING THAT ALL FOUR PRONGS OF THE N.J.S.A. 30:4C-15.1(a) TEST FOR THE TERMINATION OF J.W.'S PARENTAL RIGHTS HAD BEEN MET BY CLEAR AND CONVINCING EVIDENCE, AND THEREFORE THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED.

A. THE ORDER TERMINATING J.W.'S PARENTAL RIGHT[S] SHOULD BE REVERSED AS THERE WAS NO EVIDENCE THAT J.W. ENDANGERED OR WOULD IN THE FUTURE ENDANGER D.N.A.W.'S SAFETY, HEALTH OR DEVELOPMENT.

B. THE ORDER TERMINATING J.W.'S PARENTAL RIGHT[S] SHOULD BE REVERSED AS THE DIVISION DID NOT SATISFY THE SECOND PRONG OF THE BEST INTEREST TEST.

(i) There is no evidence that J.W. is unwilling or unable to eliminate the harm facing D.N.A.W.

(ii) There is no evidence that J.W. was unwilling or unable to provide a safe home for D.N.A.W.

(iii) There is no evidence that the delay in placement will add to the harm to D.N.A.W.

C. THE ORDER TERMINATING J.W.'S PARENTAL RIGHT[S] SHOULD BE REVERSED AS THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP J.W. CORRECT THE CIRCUMSTANCES WHICH LED TO THE PLACEMENT OUTSIDE THE HOME.

D. THE ORDER TERMINATING J.W.'S PARENTAL RIGHT[S] SHOULD BE REVERSED AS THE TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We find no merit in any of those contentions, and except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Addressing the first prong of the best interests test, J.W. argues that he did not harm the child because he was not present in the home when the children were removed. We are not persuaded. J.W. was not present in the home, and hence not available to care for the child, because he had committed domestic violence against M.J.H. and was incarcerated. Further, J.W.'s long-term inability to provide a safe and stable home for the child has deprived her of permanency. See K.H.O., supra, 161 N.J. at 348-49.

J.W. contends that the Division did not provide him with enough services to address his learning disability, his chronic unemployment, or his lack of stable housing. In particular, based on one citation to a Division case report, he contends that the Division did not assist him in finding housing. However, the Division case worker testified that the Division referred him to the Board of Social Services and requested that agency to assist J.W. in finding housing. Apparently, J.W. wanted the Division to find him an apartment and pay his rent, which the Division was unwilling to do. His brief cites no cases that require the Division to provide that level of service.

He also contends that the Division should have offered him "educational services." However, J.W. did not present any testimony, expert or otherwise, as to what services the Division could have offered that would have addressed his learning disability. According to Dr. Cahill, there were no services the Division could have provided that would have addressed J.W.'s cognitive limitations sufficiently to permit him to act as the child's parent.

J.W.'s reliance on New Jersey Division of Youth and Family Services v. L.M., 430 N.J. Super. 428 (App. Div. 2013), is misplaced. In that case, the father had been incarcerated, but turned his life around after his release. He had employment, adequate housing, and a stable home life. The father appeared to have the ability to act as a parent, but the Division had failed to provide him with resources to understand and deal with his eleven-year-old daughter's emotional disabilities. The child had bounced around the foster system and had no meaningful prospects for adoption. In that context, we held that the Division had failed to prove the third and fourth prongs of the best interests test.

That is not the situation here. Unlike the father in L.M., J.W. does not have his own life in order, and Judge Rauh credited Dr. Cahill's testimony that, although J.W. loves Dana, he does not have the ability to act as a parent and will not have that ability in the foreseeable future. Prong three requires the Division to provide appropriate services to a parent. Such reasonable services may include referrals to other agencies that can assist a parent in finding housing. See In re Guardianship of D.M.H., 161 N.J. 365, 391, 393 (1999). However, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." Id. at 393.

Moreover, unlike L.M., in this case Dana has bonded with foster parents who are ready to adopt her. The foster family also includes her sisters Betty and Alana. Dana has been in foster care since 2012. As Judge Rauh observed, she has the right to a permanent, stable home with parents who can meet her needs.

Clearly, J.W. cares deeply about his daughter, and the two of them have a loving relationship. As Dr. Cahill observed, perhaps in the best of all possible worlds, the foster parents would allow J.W. to have continuing contact with Dana.5 However, that is not an arrangement the trial court could require. See K.H.O., supra, 161 N.J. at 361-63. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). On this record, we find no basis to disturb Judge Rauh's conclusion that termination of J.W.'s parental rights is in Dana's best interests.

Affirmed.

1 To protect the family's privacy, we use pseudonyms for the children and initials for the adults.

2 Alana is M.J.H.'s child by a different father, B.A.R., who did not appeal from the order terminating his parental rights.

3 The judge found that all of the Division's lay and expert witnesses were credible. He also found that M.J.H. and J.W. were credible in their brief testimony, but he concluded that what they said was insufficient to rebut the Division's case.

4 Before this case arose, M.J.H. had already lost her parental rights to two older children. One of those children, B.B. (Betty), was adopted by the foster family with whom Dana and Alana were placed. Alana and Dana have a bond with Betty, and with each other, as well as with the foster parents.

5 M.J.H. testified that the foster mother had expressed willingness to let M.J.H. continue visiting with both children, and even gave M.J.H. her phone number. It is not clear whether the foster parents would also be open to letting J.W. continue to visit Dana.