NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.C.K., SR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.C.K., SR.,

Defendant-Appellant,

and

L.D.,

Defendant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.C.K., JR., a minor.

__________________________________

SubmittedMay 11, 2015 - Decided June10, 2015

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-138-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

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

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

PER CURIAM

Defendant M.C.K., Sr. appeals from a guardianship judgment, which terminated his parental rights and placed his medically-fragile special needs child, M.C.K., Jr., in the custody of the Division of Child Protection and Permanency (the Division) to secure his adoption.1 Prior to commencement of the guardianship trial, the child's mother, L.D., executed an identified surrender of her parental rights in favor of the resource parents. She has not appealed.

On appeal, defendant argues the trial judge's conclusions were against the weight of the evidence, maintaining the Division's proofs failed to satisfy the four-pronged statutory test demonstrating the best interests of the child warranted termination of his parental rights. N.J.S.A. 30:4C-15.1(a). We disagree substantially for the reasons set forth in the trial judge's oral opinion issued July 3, 2014, and amended on July 28, 2014. R. 2:11-3(e)(1)(A).

We fully recognize parents have a constitutionally protected right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Both the federal and the New Jersey constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. As evidenced by child abuse and neglect cases, some parents may act against the interests of their children. When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent[s] ha[ve] not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.

The Legislature has recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether . . . it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). More recently, "'[t]he child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)).

"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed

(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 criteria are not discreet and separate, but "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 348. Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506.

The scope of our review of a determination terminating a parent's rights to raise his or her child is limited. The factual findings undergirding such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Accordingly, the judgment of a trial judge "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).

Guided by these legal standards, we have reviewed defendant's challenges in light of the trial record. We find the trial judge made very explicit factual findings and credibility determinations, after weighing the evidence presented, which included defendant's testimony and his expert's opinion. The judge identified the clear and convincing proofs supporting each prong of the best interests test. She specifically found, at the time of trial, defendant's conduct had and continued to endanger the child's health, safety, and development, and there was no reasonable prospect he would cease the harmful conduct to allow the child to have a stable home. Services aimed at reunification were provided by the Division, but were not effective to mitigate the harm presented. Finally, termination would not do more harm than good.

The judge noted defendant suffered from opioid dependence. Although he produced a doctor's prescription for Percocet, the evidence revealed his then treating physician informed him, effective on July 3, 2013, she would no longer write pain prescriptions because she learned defendant was abusing the medication. Thereafter, the doctor did issue additional prescriptions for Xanax, but other evidence in the record, such as substance abuse assessments and defendant's own evasive testimony during trial, supported the conclusion defendant remained drug dependent despite treatment services. Further, defendant demonstrated "uncontrolled rage and a propensity to engage in acts of physical, verbal and emotional abuse," along with numerous parenting deficits. The Division offered a "wide array of services," specifically designed to address problems impeding the provision of a safe and secure home for the child. However, defendant demonstrated "uneven" participation, failing to complete many programs and not resolving the identified difficulties impeding his reunification with the child, which were "repeated and continuous." More important, at trial, defendant was homeless, unemployed, and admitted he was unable to assume his son's care.

In addition, the Division's expert and defendant's expert both confirmed the child's health and development would be endangered by immediate reunification with defendant, and further stated defendant was unable to parent in the near future. Circumstances impeding reunification included defendant's need (1) to resolve his addiction to painkillers; (2) to strengthen his parenting skills; (3) to engage in counseling to gain insight into his behavior, including the "dysfunctional," "pathological nature of his continued involvement with [L.D.]," despite years of his domestic violence towards her; (4) to learn to manage his anger; (5) to address his inability to place the needs of his special needs child ahead of his own wants and desires; and (6) to secure steady employment and stable housing.

The conclusion the child's need to secure permanency outweighed defendant's rights to be reunited was grounded on evidence showing no reasonable likelihood defendant could resolve the obstacles hindering his ability to safely parent his child, and the judge particularly emphasized her finding defendant was not motivated to change his behavior.

The judge further reviewed available relative placements, including defendant's sister as a possible kinship legal guardian. Defendant's sister had been given physical custody of the child in 2011, but never actually took him into her care, citing a change of heart. A year later, the Division sent her a notice she would be ruled out as a caregiver, at her request because of cited health concerns. She did not thereafter demonstrate a desire to assume custody and care of the child.

Finally, despite the affectionate relationship between defendant and the child, the trial judge relied on the Division's expert's opinion stating the bond was insecure and the child did not consider defendant as his "parental figure." On the other hand, the child "flourished" under the "attuned" care of his resource parents, who were committed to his well-being and sought to provide a permanent home through adoption. Despite the temporary loss resulting from severance of ties to defendant, which would be mitigated by the resource parents' efforts, more harm would result from continued delay, depriving the child of stability.

This State's strong public policy favors permanency in a child's residential placement. K.H.O., supra, 161 N.J. at 357-58. We, like the trial judge, recite our prior admonition to parents facing termination of their rights after years of unresolved assistance by the Division, noting "[a] child is not chattel in which a parent has an untempered property right."

Both the [f]ederal and the New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child. The emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. 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 & Family Servs. v. C.S., 367 N.J. Super. 76, 110-11 (App. Div.) (citations omitted), certif. denied, 180 N.J. 456 (2004).]

Defendant's challenges to the evidence undergirding the judgment of guardianship and termination of his parental rights are unfounded and legally unsubstantiated. Also, his additional contention the judge erroneously failed to consider his sister as a kinship legal guardian is belied by the record. We find no error and no basis to interfere with the trial judge's conclusions.

Affirmed.

1 We note the matter was initiated prior to the passage of the June 29, 2012 legislation that reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).