NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.T.N.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4993-13T4

A-5068-13T41

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

E.T.N. and D.A.M.S.,

Defendants-Appellants.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.B.N., a minor.

___________________________________

February 26, 2015

Submitted February 3, 2015 Decided

Before Judges Fasciale, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-136-13.

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

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Cort-Hourie, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.B.N. (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, defendants, E.T.N. and D.A.M.S., appeal the judgment of guardianship entered by the Family Part terminating their rights to their daughter, J.B.N.2 We affirm.

I.

We discern the following facts from the record. D.A.M.S. has a long history of mental illness and alcohol abuse. In June 2011, University Behavioral Hospital (UBH) contacted the Division to report that D.A.M.S. had given birth to J.B.N. The hospital reported that D.A.M.S. had "a history of depression and schizophrenia" that was untreated. The workers proceeded to the hospital to speak to both defendants. The Division workers expressed their concern about D.A.M.S.'s history of schizophrenia, and D.A.M.S. admitted being hospitalized a year prior for depression and not taking medication at the time of the assessment interview. D.A.M.S. explained that she did not believe medication made a difference and was not receiving any mental health treatment, but agreed to attend outpatient counseling services.

Three months later, Trinitas Hospital staff in Elizabeth reported that D.A.M.S. spent several hours in the evening walking in and out of the emergency room, pushing J.B.N. in a stroller, yelling, talking to herself and to God, stating that she needed to get her baby clean and had bleach. D.A.M.S. appeared to have not showered in days and was found in possession of a bottle of bleach and a box cutter.

D.A.M.S. had been kicked out of her mother's home in Irvington the day prior and she spent the day since pushing J.B.N. in the cold, from Irvington to East Orange, then to Elizabeth. She admitted she had not sought mental health services in some time, was not taking her medications, and had been smoking cigarettes and drinking beer to cope with stress.

When the Division worker asked for J.B.N.'s pediatrician, D.A.M.S. said she would "kill anyone that would try to do something to my baby." After a psychiatric screening, D.A.M.S. was committed. The Division worker learned that D.A.M.S. stopped attending counseling several months prior. E.T.N. had not reported the mother or child as missing although it had been several days since he last saw them.

The Division was awarded care, custody, and supervision of J.B.N. E.T.N. was present at the hearing, and indicated he had no income or housing other than housing provided by D.A.M.S.'s mother.

After a fact-finding hearing on June 4, 2012, the court found D.A.M.S.

suffer[ed] from significant mental health concerns for which she was not receiving treatment and was therefore incapable of providing even minimal care to her child. The [c]ourt found that she presented as a danger to her child, herself and others. Due to [the] same, [D.A.M.S.] placed her child at substantial risk of harm, pursuant to [N.J.S.A. 9:6-8.21c(4)(b)].

The court approved the Division's initial plan for family reunification and provided defendants with a three-month extension in which they could receive social services and mental health treatment. Despite this, both defendants failed to attend counseling or parenting courses. Meanwhile, the Division continued referring them to services and encouraging them to attend.

D.A.M.S. was referred for "a higher level of care and support" including medication and participation in a partial care day program due to her homelessness, lack of support, and chronic psychiatric issues. D.A.M.S. participated in an acute partial care hospitalization program at UBH, but her clinician reported that she persistently arrived late, left early, and exhibited poor participation in psycho-educational group sessions. She also relapsed several times by consuming alcohol.

E.T.N. similarly failed to engage in therapy, telling a Division worker that he saw no reason to attend if D.A.M.S. did not. During many of E.T.N.'s visits with J.B.N., he would appear late and leave early and on one occasion slept throughout a visit. During several visits, both defendants argued with each other and others around them, resulting in screaming, pushing, and profanity in front of J.B.N.

The Division explored placement of J.B.N. with relatives, who were all ruled out. On February 4, 2013, the court approved the Division's adoption plan for J.B.N., finding that both defendants failed to comply with required treatments, assessments, and services, and that E.T.N. lacked insight and understanding of the challenges presented by D.A.M.S.'s mental illness.

Prior to trial, Dr. Mark Singer conducted psychological evaluations and bonding evaluations of defendants and the foster parents with J.B.N. Dr. Singer concluded in a written report that "[w]hile both [E.T.N.] and [D.A.M.S.] may love their daughter," they individually and collectively lacked the resources to parent J.B.N. and would not likely have such resources and parenting abilities in the foreseeable future.

Dr. Singer also concluded that J.B.N. had no "meaningful relationship" with E.T.N., and "while [J.B.N.] . . . formed a relationship with [D.A.M.S.], she has also formed a strong relationship with her caregivers." Moreover, he found that J.B.N.'s foster parents were her psychological parents. He determined that severing J.B.N.'s relationship with her father would likely have no effect, severing her relationship with her mother would have some effect, though not significant or enduring, and severing her relationship with her foster parents would have a significant negative effect which her biological parents could not mitigate. He concluded that removing J.B.N. from her psychological parents at her age would cause "significant and enduring harm" including "difficulty forming meaningful attachments later in life" and insecurity.

At trial, Dr. Singer added that during D.A.M.S.'s evaluation, she admitted having a breakdown but was unable to identify its cause, signs, or symptoms. She also said her relationship with E.T.N. was contentious, and that he caused her stress and blamed her for J.B.N.'s removal. She also admitted drinking and becoming intoxicated every three to four days. Tests showed that she functioned at "a significantly below average level of IQ." Dr. Singer stated that D.A.M.S. did not have the capacity to meet the needs of a child and was unable to safely parent J.B.N.

Dr. Singer said E.T.N. had "an extremely limited and inaccurate understanding of [D.A.M.S.'s] mental health issues." He further failed to acknowledge that D.A.M.S. would have challenges safely parenting J.B.N., and planned to leave her with D.A.M.S. Dr. Singer said it was likely that E.T.N. would "have difficulty protecting J.B.N. from [D.A.M.S.] should the need to do so arise." Dr. Singer stated that E.T.N.'s "unwillingness to participate in services . . . precludes him from becoming a more viable parenting option for J.B.N."

Dr. Singer opined that J.B.N. saw her foster parents as her psychological parents and would be significantly harmed by removal from them. He said that defendants are not likely to become "viable parenting option[s] for this child in the foreseeable future", and J.B.N. would likely suffer no harm if defendants' parental rights were terminated, and supported the Division's plan to terminate defendants' parental rights and have the psychological parents adopt J.B.N.

On June 19, 2014, the trial court issued an opinion terminating defendants' parental rights to J.B.N. and granting guardianship to the Division. The court found that the four prongs of the best interests test, codified at N.J.S.A. 30:4C-15.1a, were met.

II.

On appeal, E.T.N. argues that the court erred in finding all four prongs were supported by the evidence and claims his due process rights are violated because the Division never spoke to E.T.N. alone regarding D.A.M.S.'s mental health issues and that the Division should not have permitted J.B.N. to reside with D.A.M.S. and her mother in the first instance. D.A.M.S. argues the first two prongs were not supported by the evidence.

We affirm substantially for the reasons set forth in Judge Floria's comprehensive written opinion. We add the following comments.

A parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "Parental rights . . . are not absolute [and] . . . [t]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

Under N.J.S.A. 30:4C-15.1a, the Division can initiate a petition to terminate parental rights on the grounds of 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 [D]ivision 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.

"The four criteria enumerated in the best interests standard 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." K.H.O., supra, 161 N.J. at 348.

When biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The 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.

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (internal quotation marks and citation omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

A. The First Prong of the Best Interests Test.

To satisfy the first prong of the best interests standard, the harm shown by the parental relationship "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Generally, the proofs "'focus on past abuse and neglect and on the likelihood of it continuing.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (quoting J.C., supra, 129 N.J. at 10), certif. denied, 192 N.J. 68 (2007).

We are satisfied the record here contains ample evidence to support the court's determination that both defendants' behavior exposed J.B.N. to harm pursuant to the first prong. D.A.M.S. suffers from significant mental health concerns including depression, schizophrenia and alcohol abuse, and resists psychiatric treatment. These problems place her daughter at a substantial risk of harm as evidenced not only by the incident wherein D.A.M.S. walked with her daughter throughout the night from East Orange to Elizabeth with a box cutter and bleach, but by her chronic instability. The finding of abuse or neglect due to her inability to provide minimal care for her daughter was proper.

While E.T.N. does not suffer from the same impairments, E.T.N. did not look for his daughter when she was unaccounted for with D.A.M.S., and according to Dr. Singer, does not understand or appreciate D.A.M.S.'s mental health problems or the risk they pose. He presented no plan for his daughter other than for her to reside with him and D.A.M.S. and to leave the child unsupervised with her mother when he works. He demonstrated resistance to assistance from the Division. While he himself may not pose a danger to the child, his minimal parenting, unwillingness to engage in services and his lack of any appreciation for the risks posed by D.A.M.S. were correctly determined by Judge Floria to be a "[failure] to provide a home in which the [child] was not in constant danger." See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 282-83 (2007) (finding a failure to "substantially alter" dangerous conditions satisfies prong one).

B. The Second Prong of the Best Interests Test.

The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: (1) the State must show that "the child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm[;]" or (2) "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.

We are satisfied the record contains clear and convincing evidence to establish prong two. The trial court found that D.A.M.S. struggled with mental health and alcohol issues for many years. She has consistently failed to comply with treatment options and failed to take prescribed medication. She also declined the services offered by the Division including parenting classes, family therapy and a parenting aide; in addition, had no stable housing for herself and her child. The court concluded that there was no evidence that D.A.M.S. was willing or able to ameliorate the circumstances which led to J.B.N.'s removal from her care.

Moreover, the court found from the outset of the case, E.T.N. was extremely resistant to the Division's involvement with his family and has continuously refused Division services. While E.T.N. said he wanted reunification with his child, he did nothing to enable this to occur. The court found that E.T.N. was unwilling to remediate the harm caused by both his actions and inactions.

C. The Third Prong of the Best Interests Test.

The third prong requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. N.J.S.A. 30:4C-15.1a(3). Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J. Super. at 620. This factor requires the Division to make diligent efforts to reunite the family. K.H.O., supra, 161 N.J. at 354. Whether a parent successfully completed the services offered is not relevant to whether the third prong has been met because the Division's efforts are not measured by their success. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

The record clearly demonstrates that the Division offered D.A.M.S. and E.T.N. an "array of services[,]" including visits, evaluations, treatment, parenting aides, transportation, counseling, and parenting programs. The services offered satisfied the third prong. See M.M., supra, 189 N.J. at 285-86 (finding the services of clinically observed visits, counseling, and parenting classes satisfied the third prong).

 
D. The Fourth Prong of the Best Interests Test.

The fourth prong, that termination of parental rights will not do more harm than good, "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 ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986). That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (2005). When parents expose a child "to continuing harm . . . and [are] unable to remediate the danger to the child, [who] has bonded with the foster parents . . . provid[ing] a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.

In establishing this prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. J.C., supra, 129 N.J. at 19. "The question . . . 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.

In addition, the Division must prove that the parent's actions or inactions contributed to the forming of that bond between the child and the foster parents, and that "the harm caused to the child from severing that bond rests at the feet of the parent." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010). A child's need for permanency and stability is an important consideration. M.M., supra, 189 N.J. at 281.

In concluding that the best interests of J.B.N. require a safe, permanent home and the opportunity to be adopted by the foster parents, Judge Floria relied upon the credible testimony of Dr. Singer that D.A.M.S. continues to struggle with chronic mental health issues, will have difficulty achieving stability for herself, and is unable to provide J.B.N. with the stability and permanency she needs. Moreover, E.T.N. minimizes D.A.M.S.'s problems and neither defendant "either individually or collectively, have the resources needed to parent [J.B.N.]" Expert testimony established that termination of E.T.N.'s parental rights in regards to J.B.N. would likely have little to no effect, while J.B.N.'s bond with her caretakers is strong. J.B.N.'s psychological parents have provided her with a permanent home and healthy relationships. The record supports the trial court's conclusion that E.T.N. could not provide these things. J.B.N.'s bond with her resource parents would serve to mitigate any loss of her biological parents in her life. These clear and convincing findings are fully supported by substantial, credible evidence in the record regarding prong four.

III.

E.T.N.'s substantive due process argument is also unpersuasive and is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). His premise that he was not taken seriously by the Division is not supported by the record. Moreover, E.T.N.'s argument that the Division's "decision to house his infant daughter with two known schizophrenics was arbitrary and oppressive" is a mischaracterization of the procedural history and the facts contained in the record. We are satisfied that Judge Floria's findings that the Division proved all four statutory prongs with clear and convincing evidence are supported by substantial credible evidence in the record and are entitled to our deference.

Affirmed.

1 These cases are consolidated for the purpose of this opinion.

2 We have used initials to protect the privacy of the parties.