NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.A.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4378-13T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.A.H. and R.M.W.,

Defendants-Appellants.

____________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.R.W.,

A Minor.

____________________________________________

May 15, 2015

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket No. FG-07-0177-13.

Joseph E. Krakora, Public Defender, attorney for appellant S.A.H. (Peter N. Milligan, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant R.M.W. (Richard Sparaco, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief).

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

PER CURIAM

In these consolidated appeals, we review a judgment of guardianship that terminated the parental rights of defendants, S.A.H. (Sandra)1 and R.M.W. (Ryan), as to one child, J.R.W. (Jason), who was born on September 5, 2003. Finding no merit in the arguments presented in either appeal, we affirm.

The family has an extended history with the Division of Child Protection and Permanency (the Division).2 Over nine years, beginning in February 2005, the Division received thirteen referrals concerning Jason. In April 2009, Jason was removed from the care of his parents based on dangerously unsanitary and unsafe living conditions. Both parents failed to consistently comply with programs and authorized visits following his removal and, in some instances, refused services.

Ryan reported his extensive criminal history, primarily assaults and the use of marijuana laced with embalming fluid. He also confirmed a history of suffering from psychiatric illness. In 2009, Ryan informed the Division that he was moving to North Carolina with his fiancée.

In April 2010, a caseworker conducted a home visit with Sandra at her uncle's residence where she had been staying, and found it appropriate. On May 26, 2010, the Division reunified Jason with his mother. Sandra subsequently obtained housing assistance and a clean, safe apartment. On August 11, 2010, the Division completed its final visit before closing the case.

The instant litigation began in July 2012. After receiving a referral from a doctor stating that Jason had been choked and hit by Sandra, the Division conducted an emergency removal of Jason pursuant to N.J.S.A. 9:6-8.29. On the date of his removal, Jason had visible abrasions. He acknowledged that his mother beat him and choked him with a plastic rope. A subsequent medical evaluation supported his claims.3

On November 13, 2012, the court conducted a fact finding hearing and concluded that Sandra physically abused Jason and ordered her to comply with recommendations for treatment following her psychological evaluation. The court also ordered the Division to conduct an interstate assessment of Ryan in North Carolina.

Sandra failed to consistently submit to substance abuse screenings and was terminated from a visitation program for poor attendance. Sandra continued to miss visits with Jason as supervised by Division caseworkers.

In February 2013, Durham County (North Carolina) Social Services denied the assessment request from the Division because Ryan was sleeping in the living room of a friend due to problems with his spouse. Ryan suggested his sister as a possible placement.

The trial court held a permanency hearing on May 2, 2013, which neither parent attended, and approved the plan of termination of parental rights followed by adoption. On June 12, 2013, an order to show cause and guardianship complaint were filed. At the September 11, 2013 case management conference, the Division was ordered to resubmit the interstate evaluation of Ryan and set up supervised phone visits. However, Ryan did not engage in regular phone visits. Ryan admitted to calling Jason only twice in a two-year period. The interstate assessment of his home was, again, denied because of insufficient space.

Additionally, the court ordered weekly visits with Sandra. However, she failed to attend the next two scheduled visits with Jason. Sandra subsequently missed therapy appointments and was terminated from the program. She continued to miss scheduled appointments and evaluations and was eventually terminated from the visitation program for non-compliance. On April 29, 2014, the trial court found that the Division made reasonable efforts in offering services, provided a plan that was reasonable and appropriate, and the court ultimately approved the Division's plan for adoption.

The guardianship trial was held on May 6, 2014. The trial court issued an oral opinion determining the Division satisfied all four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a), and entered an order terminating Sandra's and Ryan's parental rights to Jason. This appeal ensued.

I.

N.J.S.A.30:4C-15.1(a) authorizes the Division to petition for the termination of parental rights in the "best interests of the child" if the following standards are met

(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.

Sandra and Ryan separately argue the Division failed to prove each of the four prongs by clear and convincing evidence. We disagree.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid; see alsoCesare v. Cesare, 154 N.J.394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 104 (2008).

After carefully reviewing the arguments in light of the record and applicable principles of law, we conclude the trial court's findings are supported by adequate, substantial, and credible evidence in the record.

Under the first prong of the "best interests" test, N.J.S.A.30:4C-15.1(a)(1), "the trial court must consider whether the parent has harmed or is likely to continue to harm the child." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

There was clear harm to Jason as evidenced by his mother physically beating him, but this was not the only evidence of harm adduced at trial. Dr. Mark Singer, referring to her physical abuse of Jason, testified Sandra showed no recognition of what caused the assaultive behavior or any desire to change that behavior. See In re Guardianship of K.H.O., 161 N.J. 337, 383 (1999). Her inability to comply with Division mandated services and make the appropriate changes to provide a caring and nurturing home is further harm that satisfies the first prong of the test. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Jason has not been in Ryan's care since he was "in diapers," and Ryan has maintained only minimal contact with Jason over the past several years. Although Ryan was not involved in the incident of abuse leading to Jason's removal, Ryan has failed to provide a stable and safe home for Jason and has failed to comply with services that would aid him in doing so. See ibid. An interstate home inspection has twice been declined. His violent tendencies and criminal activity have been unremediated. Domestic violence incidents have continued between Ryan and his current wife, who also has a history with Child Protective Services (CPS) in North Carolina.

Furthermore, Ryan has shown an "inability to provide any nurturing care for [Jason] for [a] prolonged period," as evidenced by his failure to maintain contact with him. K.H.O., supra, 161 N.J. at 356. Ryan missed multiple visits and evaluations with Jason despite the Division providing financial assistance for transportation costs.

Under the second prong of the "best interests test," N.J.S.A. 30:4C-15.1a(2), "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1a(2)), certif. denied, 171 N.J. 44 (2002). The second prong assesses whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. K.H.O., supra, 161 N.J. at 337. Parental unfitness may be established by the parent s failure to provide a safe and stable home for the child, to foster an environment leading to normal child development, or by the parent s withholding of parental attention and care. Id. 352-53. In assessing parental unfitness, it is widely accepted that a court may consider past parental behavior as it indicates a further likelihood of harm to the child in the future. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986).

Here, the trial court properly found the Division produced clear and convincing evidence of prong two. It appropriately found that each parent, by not making efforts to change in not complying with mandatory services, showed that it is reasonably foreseeable that Sandra and Ryan will continue to inflict harm upon Ryan. See K.H.O., supra, 161 N.J. at 337. Ryan s extensive criminal history, including a history of violence, Sandra s abusive past with Jason, the fact that both parents did not have an appropriate place to live with Jason, nor did they maintain consistent contact with Jason. Further, the Division offered unrebutted expert testimony that both parents were unlikely to change their violent behavior, proving neither parent was able to provide Jason with a safe and stable home.

The third prong of the analysis places a burden on the Division to prove, by clear and convincing evidence, that it "'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to the removal of the child[] from the home." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012) (quoting N.J.S.A. 30:4C-15.1(a)(3)). The Division's "reasonable efforts" include

(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).]

The Division must also show that alternatives to termination were considered. N.J.S.A. 30:4C-15.1(a)(3).

Here, the trial court's findings with regard to the Division's reasonable efforts to provide services were grounded in substantial, credible evidence. The Division repeatedly met with the parents to set up services and make plans for remediation, tried to maintain contact with the parents regarding Jason and their responsibilities to him, and consistently tried to set up visitation. See N.J.S.A. 30:4C-15.1(c). The Division also pursued alternatives to terminating Ryan and Sandra s parental rights by investigating relatives with whom they could place Jason. See N.J.S.A. 30:4C-15.1(a)(3).

The fact that the services did not remediate the issues does not mean that the third prong is not satisfied. K.H.O., supra, 161 N.J. at 393. The Division made reasonable efforts to provide services by attempting to find relatives or friends who would care for Jason, encouraging and setting up parental visits, informing the parents of Jason s progress, monitoring the visits, and providing substance abuse treatment. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 (2012) (Reasonable efforts "'may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation.'" (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007))). Despite the availability of these services, both parents often failed to take advantage of the services and did not remediate the barriers that prevented Jason from living with either of them.

Further, Ryan s argument that he does not need an interstate assessment is invalid. The Interstate Compact was adopted in order to permit co-operating states to assist each other in the interstate placement of children. N.J.S.A. 9:23-16. We note, the Interstate Compact and an assessment thereunder does not apply if the placement involves the "sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non-agency guardian in the receiving state." N.J.S.A. 9:23-5. However, here it is not a parent placing a child out of state, rather the Division was seeking placement after it was awarded custody by the court. The Interstate Compact is designed to prevent the placement of a child with an unfit adult and, as necessary, offer oversight by the receiving state to assure a proper placement.

Sandra's argument that the Division should have provided her with a psychiatric evaluation does not negate the fact that the Division made reasonable efforts to provide her with many other services. Sandra argues that a psychological evaluation dated June 2012, recommended she receive a psychiatric evaluation. She did receive psychological evaluations by Dr. Williams in October 2012, and by Dr. Singer in September 2013, but the record does not indicate a June 2012 evaluation. However, shortly before trial, Sandra was given a January 24, 2014 appointment for a psychiatric evaluation, but she missed the appointment. Sandra was also provided with numerous other services designed to remediate her parenting deficits, many of which she failed to attend. Thus, the trial court's prong three findings were supported by substantial, credible evidence.

The fourth prong requires a determination that termination of parental [31] rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Because there is an inherent risk of harm when severing the ties between a natural parent and child, the Division is not required to show that no harm will occur. K.H.O., supra, 161 N.J. at 355. Rather, this prong requires a balancing of the interests involved and possible harm to the child by either maintaining or terminating the parental relationship. Ibid. Children have a paramount need for a permanent and defined parent-child relationship. In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

Dr. Singer testified, based on his separate assessments of Ryan and Sandra,4 that severing each parental relationship will not do more harm than good. Ryan and Sandra were each found unable to remediate the individually identified obstacles in their lives which prevented them from being able to care for Jason, and neither maintained consistent visits and contact with Jason, inhibiting Jason's ability to have the permanent and defined parent-child relationship that he needs with either one of his parents. See J.C., supra, 129 N.J. at 26. Termination of parental rights presents Jason, finally, with an ability to achieve permanency through adoption. Dr. Singer testified that a bonding evaluation would not prove compelling since Sandra and Ryan have shown that they would be unable to provide permanency. His testimony was unrebutted. Considering the evidence convincingly showing termination would not cause more harm than good to Jason, we have no reason to disturb the court's conclusion.

II.

Additionally, Sandra argues her trial counsel did not provide effective representation by failing to present a favorable expert and a bonding evaluation. We disagree.

Parents have a right to effective counsel in a termination hearing and that counsel must be effective. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007). The Court in B.R. adopted the two part test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which, in determining ineffective assistance of counsel, requires "(1) counsel's performance must be objectively deficient--i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense--i.e., there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." B.R., supra, 192 N.J. at 307 (internal quotations and citations omitted).

In asserting ineffective counsel,

appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.

[Id. at 311.]

In addition, "if the panel accepts as true appellant's representations regarding the lawyer's shortcomings but determines, on the basis of the full record, that the outcome would not have changed, then that is the end of the analysis." Ibid.

Sandra s only assertion was that her attorney should have assured she had a bonding evaluation or a favorable expert opinion with regard to her fitness as a parent. However, Sandra had three opportunities to attend a bonding evaluation and neglected to attend. In addition, there is no evidence, beyond her own bald assertions, that Sandra s legal representation prejudiced her. The record consists of five years of Division referrals based on Sandra s parenting, countless services that she neglected, the physical abuse of her son, and Sandra neglecting to visit her child. Because of the overwhelming evidence against her, we are unable to conclude that any of the claimed deficiencies in counsel's performance led to an unjust result.

Affirmed.

1 We use pseudonyms to protect the confidentiality of the parties.

2 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

3 On April 5, 2013, Sandra was charged and pled guilty to child abuse for which she was sentenced to one-year probation.

4 No bonding evaluation took place because Sandra missed three scheduled appointments and Ryan missed two scheduled appointments.