DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.B.

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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NOT FOR PUBLICATION WITHOUT THE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.B.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

J.M.B. and G.A.B., minors.

__________________________________________

June 16, 2016

 

Argued June 2, 2016 Decided

Before Judges Koblitz, Kennedy, and Gilson.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County, Docket No. FG-04-161-15.

Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the brief).

Michelle D. Perry-Thompson, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney;Melissa H.Raksa, Assistant Attorney General, of counsel; Ms. Perry-Thompson on the brief).

Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Annemarie Sedore, Designated Counsel, on the brief).

PER CURIAM

In this appeal, defendant, M.B., argues that the trial judge erred in terminating his parental rights to his daughters, Jen, born on September 28, 2011, and Georgette, born on November 12, 2012.1 He contends that the Division failed to prove by clear and convincing evidence the second, third, and fourth prongs of the statutory criteria for terminating parental rights, N.J.S.A. 30:4C-15.1(a). Principally, however, he argues that the Division failed to investigate and promote his own mother (hereinafter, "grandmother") as an alternative placement for Jen and Georgette.2 We disagree and affirm.

We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference the factual findings contained in Judge Francine Axelrad's September 22, 2015, oral opinion. However, we add the following comments. The Division effected a Dodd removal of Jen from her parents' care on August 1, 2012, after police responded to defendant's physical assault upon N.B., in which she was choked into unconsciousness, necessitating hospital treatment. Following Jen's removal, the Division contacted and interviewed family members for possible placement, but was unable to find a willing or able relative. Grandmother expressly declined because she had "many doctor appointments," had "no car," and did not want to "jeopardize" her Section 8 benefits. Jen was then placed with a resource family.

In November 2012, following Georgette's birth, the court granted the Division's petition for her care and custody, and she was thereupon placed with the resource family providing care to Jen. Defendant and N.B. briefly regained custody of the children in the summer of 2013, but that arrangement quickly collapsed after defendant again visited a series of brutal attacks upon N.B., culminating in her flight to a domestic violence shelter. The children were then returned to a resource family.

In April 2015, grandmother applied for custody of Jen and Georgette, and the Division arranged for her examination. Dr. Linda Jeffrey examined grandmother and diagnosed her as suffering from an "adjustment disorder" with schizoid, obsessive-compulsive, and dependent personality features. She concluded that grandmother could not safely and properly care for the children, who regarded her, in any event, as a "relative unknown" because she had visited the children - at most - three times over the years.

Judge Axelrad concluded that the Division presented clear and convincing evidence that all four prongs supported termination of defendant's parental rights. After careful review, we are satisfied that the judge's findings were supported by substantial, credible evidence in the record and are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 49 (2012) (citation omitted); Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Parents have a constitutionally protected right to the care, custody, and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394 95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed essential, basic civil rights . . ., and rights far more precious . . . than property rights." Stanley v. Ill., 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

However, the constitutional right to the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citation omitted); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (citation omitted), superseded in part and on other grounds by N.J.S.A. 9:3-46(a). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009) (citation omitted); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in a child's best interests. The test requires that the Division prove by clear and convincing evidence the following four prongs

(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.

[N.J.S.A. 30:4C-15.1(a); see also A.W., supra, 103 N.J. at 604 11.]

Judge Axelrad thoroughly considered and applied these statutory requirements, and we find no reason to second-guess her determination here. We further observe that while placements with relatives may obviate the need for termination of parental rights, N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488 89 (App. Div. 2012), there is no presumption of placing children with relatives over third parties, N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003).

If a relative identifies himself or herself as a potential caretaker, the Division must undertake a reasonably prompt and fair investigation of this potential placement option. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 87 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). The problem here is that grandmother expressly demurred when first approached by the Division about assuming responsibility for these children, and then visited them only three times over the course of years. That the scales first fell from her eyes upon the eve of termination of her son's parental rights does not, in these circumstances, warrant our intervention.

In short, we reject defendant's arguments and affirm substantially for the reasons set forth by Judge Axelrad in her comprehensive and thoughtful opinion.

Affirmed.


1 We employ pseudonyms to preserve the confidentiality of the parties to this appeal.

2 The children's mother, N.B., voluntarily surrendered her parental rights prior to the guardianship hearing and does not join in the appeal. The Law Guardian supports termination.


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