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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1867-13T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

B.J.B. and J.E.G.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.L.G., a minor.

___________________________________

February 24, 2015

Submitted January 6, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0033-13.

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

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.L.G. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants B.J.B. (Betty)1and J.E.G. (John) appeal from the Family Part's judgment entered November 19, 2013, terminating their parental rights to their two-year-old daughter, J.L.G. (Joanie Lee). In their consolidated appeals, defendants contend the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test. N.J.S.A.30:4C-15.1(a). The Law Guardian joins the Division in supporting the judgment. Having reviewed defendants' arguments in light of the record and applicable law, we affirm.

I.

Joanie Lee was placed with her foster parents directly from the hospital, four days after her birth on October 26, 2011. Both Joanie Lee and Betty tested positive for marijuana. Betty admitted to using marijuana twice daily during her pregnancy, stopping only shortly before the birth.2 Joanie Lee remained thereafter with those foster parents, who became her psychological parents. By contrast, Betty and John eschewed contact with their daughter, availed themselves of virtually none of the services the Division offered to them, and expressed their preference that John's sister, B.C. (Belinda) adopt Joanie Lee.

Betty was a client of the New Jersey Division of Developmental Disabilities. According to a 2007 evaluation, Betty had a history of cocaine dependency and cannabis abuse; she was illiterate; and had a full scale IQ of 63, classifying her as "mild mentally retarded." She was supported by Supplemental Security Income (SSI).

John was unemployed. According to the same 2007 evaluation, he functioned at the borderline intellectual level. He had a criminal record and had served a total of over five years in prison on various theft and drug charges. Betty and John lived together in the same home.

Betty and John had two other daughters, Joanie Belle, born in 2006, and Joanie Mae, born in 2010. Betty and John voluntarily surrendered custody of Joanie Belle after the Division substantiated that they had abused or neglected her. Their second daughter, Joanie Mae, was removed after suffering the health effects of Betty's drug use during pregnancy. John later surrendered his rights to Joanie Mae, and Betty's rights were terminated by the court in March 2011.

The Division ultimately ruled out Belinda as a caregiver for Joanie Lee. The Division initially declined to place Joanie Lee with Belinda because her home was unsafe. Over the months that followed, Belinda's responsiveness to the Division, and her commitment to developing a relationship with Joanie Lee, were inconsistent.

In December 2011, Belinda did not return Division phone calls or attend visitation. She restated her interest in February 2012. By the end of that month, she had relocated. However, her efforts to secure employment fell through and the Division learned that she regularly failed to follow-up with her pre-teen son's learning and behavioral problems, and her teenage daughter was failing classes at school.

After the Division denied Belinda's application in May 2012, she reportedly told Joanie Lee's foster parents that she was unable to care for her niece. However, at the end of July 2012, the court ordered the Division to reassess Belinda as a possible caregiver and to provide weekly supervised visitation. The next month, Belinda appealed the Division's decision to deny her application. However, she failed to overturn the decision.

The court ordered Belinda to provide full disclosure of her financial and educational information to the Division, but she failed to do so in a timely way. After visitation with Joanie Lee was relocated to Newark, Belinda declined numerous opportunities to exercise visitation sometimes cancelling at the last minute despite the Division's offer of transportation. Joanie Lee attended day care in Newark. The Law Guardian had requested the site change to reduce transportation of the child. Belinda's last visit was apparently in January 2013. Belinda had been afforded the opportunity to refile an appeal from the Division's decision, but she took no action by the June 29, 2013, deadline.

While the Division considered Belinda as a potential caregiver, Betty and John avoided any involvement in their daughter's life. They refused numerous opportunities to exercise visitation. They declined to attend team meetings, including meetings to discuss Joanie Lee's future if Belinda were ruled out. Their attendance at court hearings was inconsistent.

In March 2012, the court found that Betty had abused and neglected Joanie Lee due to her unremediated substance abuse problem, which Betty had not endeavored to correct. Betty refused to submit to a drug evaluation. The court also entered an order relieving the Division of its obligation to provide reasonable efforts to reunify Joanie Lee with her mother. The court ordered both parents to help facilitate an investigation into adoption.

The following month, the court ordered the Division to place Joanie Lee with Belinda if it deemed it appropriate. John waived his right to a fact-finding hearing, and stipulated that he needed the Division's services for placement of his daughter. Both parents missed their court-ordered psychological evaluations.

At a rare supervised visit with Joanie Lee in August 2012, Betty and John reiterated their desire that Belinda adopt their daughter, notwithstanding the Division's decision rejecting Belinda. In January 2013, the Division revised its plan to include adoption of Joanie Lee by the foster parents. In February 2013, Betty and John continued to express their desire that Belinda adopt Joanie Lee.

The court issued a permanency order on March 15, 2013, noting that the plan for the child was termination of parental rights followed by adoption. The court noted, "The parents refused services and are not seeking reunification. The parents' plan is for a paternal relative to be able to adopt their child." In a separate order, the court ordered that "[a]ny visits that take place between the parents and the child shall be therapeutic visits and [Belinda] can attend these visits as long as the parents attend." The court noted, "The therapeutic visitation that the court has ordered is the only service that the parents are seeking."

The Division filed its guardianship complaint in May 2013. Neither parent exercised visitation. They also refused to attend a bonding evaluation with the Division's expert, Amy Becker-Mattes, Ph.D.

Dr. Becker-Mattes did conduct a bonding evaluation involving Joanie Lee and the foster parents, B.O. and L.O. Dr. Becker-Mattes observed that Joanie Lee was affectionate, and happy with her foster parents, who provided her with safety, security, and guidance. Dr. Becker-Mattes opined that removing Joanie Lee from her resource family would cause serious and enduring harm.

At the guardianship trial before Judge Audrey P. Blackburn, the court heard from the Division's adoption caseworker, Mary Irungu, who had been assigned to defendant's case since March 2013. Irungu reviewed many of the facts discussed above and laid a foundation for the introduction into evidence of Division files. The Division also presented Victoria Port, a Division permanency worker, who was assigned to defendants' case between July 2012 and March 2013. Port testified that neither parent proposed relative placements other than Belinda. Finally, Dr. Becker-Mattes reviewed her evaluations. She opined that it was unlikely that a parent could form a significant bond with a child after only three visits during a two-year period. The defendants did not testify, nor did they call any witnesses.

After reviewing the relevant facts, Judge Blackburn found that the Division proved, by clear and convincing evidence, all four prongs of N.J.S.A.30:4C-15.1(a)

(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;3and

(4) Termination of parental rightswill not do more harm than good.

Judge Blackburn found that the Division established prong one based on Betty's and John's failure to foster any relationship with Joanie Lee. Quoting In re Guardianship of K.L.F., 129 N.J.32, 44 (1992), Judge Blackburn observed, "'[S]erious and lasting emotional [and] psychological harm to children as [a] result of [the] action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.'" The court noted that Betty and John ignored their child, relying instead on their proposal of adoption by Belinda. Judge Blackburn found, "Neither has provided nurturance, care, safety and security for this child. They have flatly refused to do so."

In support of her finding that prong two was met, Judge Blackburn relied on defendants' failure to develop a relationship with their daughter, and their refusal to participate in services or evaluations, including their refusal to allow the Division to inspect their home. Crediting Dr. Becker-Mattes's findings and opinions, the court found that separating Joanie Lee from her foster parents "would cause [her] serious and enduring emotional and psychological harm."

As for prong three, the court recalled the testimony of Division workers, Irungu and Port, in finding that the Division made reasonable efforts to provide services to defendants. "Both [biological parents] have steadfastly refused to engage in these services." The court also found that the Division considered the alternative of a placement with a relative, Belinda, although that plan would also have resulted in termination of parental rights and adoption.

Finally, the court found that termination of parental rights would not do more harm than good. Judge Blackburn found that Joanie Lee had a deep need for permanence. The judge noted that the child had been in the same home since she was four days old; her "foster parents are her psychological parents, [and] removal from them would cause severe and enduring harm which could not be ameliorated by her biological parents."

On appeal, Betty presents the following point and subpoints for our consideration

I. THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THE FOUR STATUTORY CRITERIA ENUMERATED IN THE "BEST INTERESTS" TEST FOR TERMINATION OF PARENTAL RIGHTS.

A. The Division failed to establish by clear and convincing evidence that [Betty] has ever endangered, or will endanger, [Joanie Lee's] safety, health or development and the trial court committed error by allowing documents from previous litigation into evidence.

B. The Division failed to establish by clear and convincing evidence that [Betty] is unwilling or unable to eliminate the harm facing her daughter because no harm was ever proven under the first prong.

C. The Division failed to establish by clear and convincing evidence that it made reasonable efforts to provide meaningful services to [Betty] that would allow her to correct the circumstances which led to her daughter's placement with DCPP.

D. The Division failed to establish by clear and convincing evidence that the termination of [Betty's] parental rights will not do more harm than good because there were no bonding evaluations, rendering it impossible for the Division to prove that [Joanie Lee] is more bonded with her foster parents than with [Betty].

John presents the following point and subpoints

D.C.P.P.[] FAILED TO MEET ITS BURDEN OF PROVING BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF [JOHN'S] PARENTAL RIGHTS WAS THE APPROPRIATE DISPOSITION.

(A) There was insufficient evidence to prove by clear and convincing evidence that [Joanie Lee's] safety, health or development has been or will continue to be endangered by the parental relationship under the first prong.

(B) There was insufficient evidence in the record to support the trial court's conclusion that D.C.P.P. fulfilled its obligation to search for available relative placements, as required by N.J.S.A.30:4C-12.1, or that ruling out [Belinda] as a placement for [Joanie Lee] was in her best interests.

(C) There was insufficient evidence to prove by clear and convincing evidence that termination of [John's] parental rights will not do more harm than good, under the fourth prong.

II.

Based on our review of the record and applicable law, we are satisfied that the evidence in favor of the guardianship petition adequately supports the termination of defendants' parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm, substantially for the reasons set forth in Judge Blackburn's comprehensive oral opinion.

We add the following comments. With respect to the court's prongs one and two findings, John asserts that he caused no harm to Joanie Lee, focusing solely on physical harm, such as the marijuana in her system at birth. Betty argues the court misplaced reliance on her failure to engage services, and placed undue weight on evidence of her past substance abuse, cognitive deficits, and lack of housing and employment.4 She asserts she did not avail herself of services only so long as Belinda was under consideration. She contends she "stated that she would comply with services," and she "insisted upon visitation." She argues that the Division's alleged failure to provide her with services once she was willing to engage also undermined the court's prong three finding.

Both parents misconstrue the court's finding. The key fact underlying the prongs one and two findings was the parents' steadfast refusal to provide their daughter with any contact, nurturance, or emotional support, and their resistance to any services that would enable them to do so. As the Court noted in K.L.F., and as echoed by the trial court, that kind of withholding of emotional support and nurturance constitutes emotional harm that may warrant termination of parental rights. See also N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super.451, 480-81 (App. Div. 2012).

Betty's argument that she was ready to engage services once Belinda was ruled out is simply unsupported by the record. In January 2012, a contact sheet reported John to say that "[h]e and [Betty] are willing to comply with services if his sister is ruled out as a potential placement." However, both he and Betty then advised the caseworker that they did not want to parent Joanie Lee. They made no efforts to build a relationship with their child while Belinda was under consideration. Rather, they expressly refused services. Although the court relieved the Division of its obligation to offer services to the parents in March 2012, the Division nonetheless invited them to family team meetings. Visitation was available. The parents simply refused. Belinda was formally ruled out in May 2012. Betty alleges she "insisted" upon visitation almost a year later, in March 2013. Moreover, as noted in the court's orders that month, the visitation requested was only therapeutic visitation. No other services were sought. And the parents did not exercise that therapeutic visitation.

As for the third prong, both parents also argue that the Division did not fairly consider Belinda as an appropriate caretaker for Joanie Lee. We are unpersuaded. The record reflects that the Division assessed Belinda's ability to care for Joanie Lee, consistent with N.J.S.A.30:4C-12.1. SeeN.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 84-88 (App. Div. 2013) (discussing Division's obligation to consider relative placements), certif. denied, 217 N.J.587 (2014). The Division offered services to Belinda to assist her in her efforts to qualify as Joanie Lee's caretaker.

On the other hand, there is no presumption in favor of placement with a relative. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003) ("[A]lthough there are statutory provisions in Title 30 and Title 9 which refer to relative placements, the statutes do not create a presumption in favor of such placement."). A child is entitled to the Division's best efforts to be placed with a relative and any siblings and to have regular visitation with any siblings, if that is "consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development." N.J.S.A.9:6B-4(b), (d), (f). Even a ready, willing and able relative may be ruled out if the best interests of the child would be served by continuing placement with foster parents with whom the child has bonded. SeeJ.S., supra, 433 N.J. Super.at 89.

Given our standard of review, we discern sufficient credible evidence in the record to support the court's determination that the Division made a reasonable effort to explore placement with Belinda, but determined that she was not an appropriate placement. It was undisputed that Belinda's home was initially unsuitable. Although she eventually moved to different housing, the court noted that Belinda's visitation became sporadic once it was relocated to Newark for the benefit of the child. The Division found that Belinda was not attentive to the educational needs of her own children. Belinda also failed to pursue her administrative appeal in June 2013. Defendants failed to present evidence at trial to rebut the Division's findings, which supported its decision to rule out Belinda. Nor did they present evidence to establish that it would serve Joanie Lee's best interests to be placed with Belinda, instead of her foster parents.

Finally, there is no merit to John's and Betty's argument that prong four was not met. The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." In re Guardianship of K.H.O., 161 N.J.337, 355 (1999). The undisputed evidence established that Joanie Lee was strongly bonded to her foster parents, who demonstrated they were capable of and willing to provide her with the love, nurturance, and permanence that she needed. If she were separated from her psychological parents, she would suffer substantial and irremediable harm. By contrast, terminating parental rights would inflict no demonstrated harm to Joanie Lee, as her relationship with her parents was non-existent.

To the extent not addressed, John's and Betty's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

1 We use pseudonyms for the parties, their children, and the children's paternal aunt.

2 There is no evidence that Joanie Lee suffered any lasting effects from the marijuana in her system. However, she was cyanotic at birth and in respiratory distress for several days due to other causes.

3 "Reasonable efforts" as used in paragraph 3 mean

attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to

 
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
 
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

 
(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 
(4) facilitating appropriate visitation.

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

4
 
 
 
 
Betty also argues that the court's admission into evidence of various documents pertaining to Betty's drug abuse violated N.J.R.E. 403 and N.J.R.E. 404(b). No objection was made at trial. Indeed, both defendants consented to the admission of the documentary record. We do not perceive any error, let alone plain error that would lead to an unjust result. First, past behavior is relevant to and admissible in determining risk of harm to a child, notwithstanding N.J.R.E. 404(b). See N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). Second, any conceivable error was invited, given defendants' consent to the admission of the records. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010).