DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1549-14T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.G. and S.M.J.,

Defendants-Appellants.

______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.S.J. and M.B.J., minors.

______________________________

November 19, 2015

Submitted October 13, 2015 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-66-14.

Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Richard Sparaco, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant S.M.J. (Marc D. Pereira, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief).

PER CURIAM

Defendants J.G. (Mother) and S.M.J. (Father) appeal from a final judgment terminating their parental rights to their seven-year-old son, Jack, and six-year-old daughter, Mala.1 Father contends the Division of Child Protection and Permanency failed to prove even one of the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1a(1)-(4). Mother contends only that the Division failed to prove the first two prongs, that the children's safety, health or development were endangered by her parental relationship and that she is unwilling or unable to eliminate that harm or provide a safe and stable home for them.2 Having considered their arguments in light of the record and controlling law, we affirm.

Because neither Mother nor Father offered any witnesses or testified at trial, the proofs offered by the Division were largely uncontested. Although the Division had contact with the family beginning in 2008 arising out of domestic disturbances, Mother's alcohol use, Father's conviction for aggravated assault and burglary and the family's lack of housing, the children were not removed from their parents' care until June 2011.

The event precipitating their removal was Mother taking the children to church and asking the priest to perform an exorcism. Jack was just shy of three years old and Mala almost two. Mother was homeless and the children had reportedly not eaten in three days. She reported hearing two voices, a "good one" and a "bad one," and having to resist the urge to give her children to the devil. Because Father was serving a prison term on the burglary and assault convictions, and no other family member was available to care for them, the Division placed the children in foster care. Neither Mother nor Father was ever able to resume custody, and the children remained in foster care through trial over three years later in October 2014.3

Over the course of those three years, Mother had at least four more psychiatric hospitalizations. She reported hearing voices, experienced homicidal and suicidal ideations, was diagnosed with paranoid schizophrenia and failed to take necessary medications on a regular basis. She was twice jailed for several months for receiving stolen property, tested positive for marijuana or cocaine on several occasions, was discharged from parenting classes and partial care programs for poor attendance and evicted from housing because of physical altercations with others and substance abuse. Although she had some positive visits with her children, over time her participation became sporadic, and she displayed inappropriate behavior, including sleeping during visits and hitting the children. They eventually resisted visiting, and their therapist recommended terminating visitation after the children began urinating on themselves after visiting with her.

Mother never appeared for any of the four to six scheduled bonding evaluations with the children and told the psychologist assigned to evaluate her for services that she "still today believes it was the devil" that was talking to her and "pulling [her] hair while [she] was asleep." She admitted a history of domestic violence with Father, but described her relationship with him as "beautiful." The psychologist concluded Mother "lacked the psychological capacity to adequately meet a child's developmental needs for safety, nurturance, stability and guidance" and "[p]lacement of the children in her independent care would place them at heightened risk of harm."

Father, after having been released to an intensive supervision program a few months after the children were placed in foster care, participated faithfully in supervised visitation for the first several months. Following a psychological evaluation in April 2012 that found him "committed to the care of his children," emotionally stable and having "the intellectual ability to supervise," Father was allowed unsupervised visitation with the recommendation that he attend substance abuse treatment and obtain housing.

In December 2012, Father was incarcerated for six months. Shortly after his release, he tested positive for cocaine during a court screening and was referred for drug treatment. Father admitted using cocaine three to five times a week and alcohol three to six times a week. He was referred for outpatient treatment at the Rescue Mission, but did not attend. The Division attempted to re-engage him in drug treatment in the fall and winter of 2013, but Father became difficult to contact and did not keep appointments.

Father was jailed for disorderly conduct in January 2014 for public drunkenness. He was referred to intensive outpatient drug treatment, but did not attend. Father disappeared in February, and the Division did not see him again until a court hearing in June 2014. At the hearing he reported having moved to Syracuse for more opportunity. Although he claimed to have been participating in programs there, the Division could not confirm that, and he tested positive for cocaine in a court screening.

Upon his return to New Jersey, Father underwent a psychological and bonding evaluation. Although Father read books, played with toys and sang songs with the children, the psychologist termed it a "very slow to warm situation . . . that was indicative of estrangement." She described Father as a "somewhat familiar stranger" to the children, noting he "was largely absent from their lives during the critical bonding period typically from birth to age three."

She found Father attempted to deceive or "fake good" in ways inconsistent with his documented history such as denying concerns about his ability to meet the needs of a child and doing anything bad for his health. He denied any drug or alcohol problem and eschewed the need for drug treatment. The psychologist found he "was unaware of how the children were doing much . . . of the time because he had very limited contact with [Mother]." Although concluding Father had the "cognitive capacity to parent," she did "not think [Father] would be an appropriate parent to the children now or in the foreseeable future" because "he had unstable housing, he was not employed, he has a history of substance abuse," and "a history of criminal involvement." Although she found the children might miss their Father were his rights terminated, she did not conclude they would suffer any severe or enduring harm.

The children had two prior placements before being placed with a foster parent willing to adopt in December 2013. The psychologist found the foster mother to have good parenting skills and motivated to adopt the children. She concluded, "based on the developing and healthy bond that [she] observed between the resource parent and the children" that removal would be "a severe and enduring loss to the children."

Having heard the evidence, the trial judge concluded the Division had carried its burden of clear and convincing proof as to both parents on all four prongs. Although finding "no real allegations of abuse," the judge concluded the children were harmed by their parents' absence during Mother's hospitalizations and Father's incarcerations.

Finding Mother's psychiatric condition "[not] a fault inspired harm," the judge nevertheless concluded her hallucinations presented "a significant harm for the children." He found Mother's "deep psychiatric problems" continued, and she "has done nothing significant to alter the situation which created the harm or the risk of harm to these children back in June of 2011." The judge found Father had a substance abuse problem, which he refused to acknowledge or treat. He concluded Father was "in and out in terms of dealing with the children. He was incarcerated sometimes, . . . other times he was just not available to deal with what he had to deal with."

The judge found the Division made numerous referrals for both parents, who either refused or failed to complete services. He found the Division did what it could to reunite the children with their parents but got "very little, if any[,] cooperation [from] the parents . . . in order to accomplish all of that." The judge found the psychologist's testimony that Father was not an appropriate parent and likely will not become one in the foreseeable future "practically uncontroverted" and "entirely credible." He accepted the psychologist's testimony that there was no real emotional attachment between Father and the children, and found Mother's failure to submit to an evaluation despite the Division's four to six attempts over five months "an affront." Concluding that the children will suffer "severe and enduring harm" if removed from their foster arrangement, the judge concluded there was no doubt that termination of the parents' parental rights will not cause more harm than good.

Our review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We generally "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it 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) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

Our review convinces us that the judge's findings are amply supported by the trial testimony. Neither Father nor Mother managed to be able to provide these children with a safe and stable home at any point after they were removed from their care in 2011. The children, removed from their parents when they were not yet two and three, are now six and seven and entitled to the stability that adoption promises.

Their Mother, through no fault of her own, suffers from severe and long-standing psychological problems that unquestionably put these children at significant risk of harm. Her failure to take prescribed and necessary medication has led to repeated hospitalizations and homelessness. Although "[m]ental illness, alone, does not disqualify a parent from raising a child, . . . it is a different matter if a parent refuses to treat [her] mental illness" and it "poses a real threat to a child." F.M., supra, 211 N.J.at 450-51.

Father was undoubtedly aware of Mother's psychiatric problems, yet did nothing to ensure the children's safety and stability. Instead, he was incarcerated for months at a time and refused to acknowledge or treat his longstanding addiction to cocaine. Contrary to Father's contentions, the judge did not rest his analysis on the mere fact of Father's incarceration. Instead, the judge appropriately considered Father's incarceration as one of several factors in his analysis. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556 (2014) (noting that incarceration, though alone insufficient grounds to terminate parental rights, is one among several factors a court may consider in its best interests analysis); In re Adoption of Children by L.A.S., 134 N.J. 127, 135-37 (1993) (same).

The record amply demonstrates that Father, even when not incarcerated, visited the children consistently only for brief periods and never obtained treatment for an obvious substance abuse problem. In addition, he did not secure employment long term and thus was never able to provide for his children or obtain stable housing for them.

We are satisfied that the record amply supports the judge's findings that both parents refused and failed to complete the services offered to them and that termination of their parental rights will not do more harm than good. Because review of the record demonstrates that the judge was correct in finding the Division proved by clear and convincing evidence all four prongs of the best interests standard as to both parents, we affirm the termination of their parental rights to Jack and Mala.

Affirmed.

1 These names are fictitious to protect the children's identities.

2 The Law Guardian supports termination.

3 Mother consented to the removal upon her involuntary commitment, acknowledging her inability to care for the children at that time.