NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.C.R., SR.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0

A-1376-15T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.C.R., SR. and L.R.P.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.H.P. and A.R.R.-P., minors.

__________________________________

October 17, 2016

Submitted October 6, 2016 Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-210-15.

Joseph E. Krakora, Public Defender, attorney for appellant T.C.R., Sr. (Celeste Dudley-Smith, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant L.R.P. (Richard Sparaco, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant L.R.P. appeals from a guardianship judgment, which ordered the termination of her parental rights to six-year-old A.R.R.-P. and her older child, T.H.P., who is age eight. Defendant T.C.R., Sr. separately appeals from the same judgment, which terminated his parental rights to his child A.R.R.-P.1 The judgment placed the children in the custody of plaintiff the Division of Child Protection and Permanency (the Division) to secure their adoption.

On appeal, each defendant challenges the trial judge's conclusions, arguing the Division's proofs were insufficient to satisfy the four-pronged statutory test demonstrating the best interests of the child warranted termination of parental rights. N.J.S.A. 30:4C-15.1(a). We disagree and affirm.

During the November 13, 2015 guardianship trial, the Division offered testimony from caseworkers Crystal Jackson and Cathy Williams and adoption unit supervisor Herrminio Torres. Additionally, Leslie Williams, Ph.D., provided expert testimony regarding psychological and bonding evaluations he performed. Finally, the Division admitted approximately sixty documents into evidence, noting any embedded hearsay by non-testifying parties was stricken. The Law Guardian, on behalf of the children, supported the Division's position. T.C.R., Sr. testified on his own behalf. L.R.P. did not appear.

Testimony by the Division's employees addressed the services offered to the children and parents, the resource parents, the resource parents' interactions with the children and interventions taken to address the children's needs, the Division's investigation and consideration of alternative relative placements, various services and experts enlisted to provide guidance to the parents to achieve reunification, and the Division's ability to locate an adoptive home and secure permanent placement for the children.

The Division's employees related facts gathered during the course of an investigation, which commenced after L.R.P. was observed threatening to harm six-month-old A.R.R.-P., in January 2011.2 A subsequent referral, in August 2012, led to this litigation. The second referral was made by University Hospital, where A.R.R.-P. was admitted because she suffered a serious kidney infection, accompanied by a very high fever.

At that time, the Division learned T.C.R., Sr. was in jail following his arrest for armed robbery, weapons, and drug offenses. The children each suffered from physical and developmental delays; however, for more than a year3 L.R.P. had failed to assure they received necessary medical treatment and never initiated recommended early intervention or enrolled them in school. An inspection of the family's residence revealed the home was "disorganized and cluttered"; dirty and in disrepair; lacked beds and a working refrigerator; had very limited food; and was infested with gnats and flies. Finally, when L.R.P. completed a psychological evaluation, performed by Dr. Williams, and a substance abuse evaluation, the Division learned L.R.P. suffered from depression and anxiety, regularly abused marijuana and believed "treatment [wa]s not at all important for these drug problems."

L.R.P.'s agreements to provide daily hygiene, medical, dental and other educational services for the children were repeatedly broken. The Division substantiated neglect of both children and was awarded custody on January 29, 2014.

Throughout the more than three-year involvement with L.R.P., the Division scheduled, paid for and monitored a myriad of services designed to achieve the children's safe and secure care. Although she attended some evaluations and commenced certain programs, L.R.P. completed none.

Unfortunately, L.R.P. also ignored the necessity for treatment and rehabilitation, remaining an illicit drug abuser. In fact, the record reflects her drug abuse intensified over the years as illustrated by: (1) her June 13, 2014 admission she used marijuana shortly before her visit with the chi1dren; (2) L.R.P.'s self-report she stopped drug use in November 2014, which was refuted by a June 30, 2015 urine screening that tested positive for opiates and morphine; and (3) a November 4, 2015 urine screening, conducted approximately one week before trial, which tested positive for 6-MAM (a metabolite of heroin), codeine, hydromorphone, morphine, and marijuana.

Despite the Division's significant extension of services, funds and transportation, L.R.P. made no strides in achieving housing, acquiring parenting skills training, engaging in therapy or remediating her substance abuse. Other identified barriers to reunification were L.R.P. remained unemployed, became homeless, was often uncooperative and uncommunicative with the Division, and, perhaps most importantly, ceased visits with the children as of August 11, 2015.

The Division's expert, Dr. Williams, discussed the results of psychological evaluations, which the trial judge found "very credible," "logical and reasonable." Based on his findings, Dr. Williams concluded L.R.P. was "not capable of providing adequate parenting [for] her children," and despite the fact she had time to achieve reunification, she "has chosen not to comply." He also noted any prognosis for L.R.P. to make and sustain positive changes in her life was "poor"; therefore, the children would be at risk in her care.

Dr. Williams further performed bonding evaluations between the children and their mother. He found the children's bond with L.R.P. was "insecure." Although they knew she was their mother, "[n]either child looked to her for nurturance or security." Dr. Williams believed, based on this insecure bond, termination of L.R.P.'s parental rights "would not effect [T.H.P.]" and A.R.R.-P. "would not suffer a severe harm." Thus, neither child would "suffer severe and enduring psychological harm if [L.R.P.'s] parental rights were to be terminated. The children need to achieve permanency and not wait on [L.R.P.] to choose to make her children's needs a priority."

The Division also presented evidence supporting its request to terminate T.C.R., Sr.'s parental rights, asserting he had not in the past, nor could he in the foreseeable future, assume the care of A.R.R.-P. Following his arrest on August 9, 2012, when A.R.R.-P. was only two years old, T.C.R., Sr. remained in jail and ultimately pled guilty. He was sentenced to an eight-year term of incarceration, requiring he serve eighty-five percent of the term prior to his consideration for parole. During trial, he stated his parole eligibility was more than forty months away.

Dr. Williams's June 16, 2015 psychological evaluation, conducted at Northern State Prison in Newark, diagnosed T.C.R., Sr. with psychoactive substance abuse and antisocial personality disorder with narcissistic features. T.C.R., Sr. admitted using cocaine, marijuana, pills, and alcohol. Further, he was not enrolled in available drug rehabilitation programs. T.C.R., Sr. had a significant criminal history, which included ten to twelve adult arrests in two states. He had fathered eight other children, and no evidence suggested he ever acted as a principal caregiver. He last saw A.R.R.-P. on the date of his arrest.

Based on this evaluation, Dr. Williams opined T.C.R., Sr. was "not capable of providing adequate parenting of [A.R.R.-P.]" and the child should not be required to wait for the next several years for T.C.R., Sr.'s release and development of the ability to provide safe parenting. He concluded A.R.R.-P. would not suffer any harm if her ties with T.C.R., Sr. were severed, as he "psychologically does not exist for her."

T.C.R., Sr. spoke of his desire to care for his daughter. He admitted, however, he was unfamiliar with her education or health needs. He suggested he continued contact by calling after his arrest and once wrote the child a letter. We note T.C.R., Sr. requested the child participate in visits at the prison. However, the request was denied for two reasons. First, caseworker Williams testified the prison social worker would not approve the visits. Second, visits were not recommended as a result of the child's psychological evaluation by Dr. Williams and psychiatric evaluation by Sonia Oquendo, M.D., which diagnosed A.R.R.-P. with conditions, including ADHD, oppositional defiant disorder, reactive attachment disorder, among others, which caused her to be hyperactive, oppositional, restless, inappropriately affectionate, and uncooperative. These conditions would be exacerbated and A.R.R.-P.'s scheduled therapy would be significantly disrupted by visits with T.C.R., Sr. who essentially was a stranger.

After weighing the evidence, the trial judge found L.R.P.'s conduct resulted in the children's neglect and her essential rejection of services and refusal to modify her behavior, which placed the children at significant risk of future harm and would endanger their health, safety, and development. The facts also showed no reasonable prospect she would cease the harmful conduct, prompting the Division's involvement in the first instance and that she failed to comply with recommended services and treatment. Finally, the judge concluded termination of parental rights would not do more harm than good.

Regarding T.C.R., Sr., the judge's comments reflect testimony suggesting T.C.R., Sr. was available for the child was refuted by the evidence showing his conduct. The judge emphasized T.C.R., Sr.'s decision to continue anti-social, criminal behavior, resulting in extended incarcerations, reflected an unwillingness to provide care for A.R.R.-P. Moreover, unremitted substance abuse and untreated mental health concerns demonstrated issues of instability that raised concerns adverse to the child's safety. Taken together, these facts negated any reasonable prospect T.C.R., Sr. could or would be able to care for A.R.R.-P. in the future. Further, T.C.R., Sr.'s prolonged incarceration for most of the child's life precluded the Division from extending services and he had not engaged in programs available in the prison, especially those aimed at substance abuse treatment.

Contrary to T.C.R., Sr.'s assertion, the Division notified paternal and other relatives, all of whom declined or were ruled out as possible caregivers following evaluation. Finally, in assessing the effect of termination of parental rights, the judge weighed the fact that the Division had not secured a permanent home for A.R.R.-P., who since May 5, 2015, lived in a mentor treatment home. He noted the child's interactions with her resource family were positive and the resource parents had expressed interest in considering adoption. The judge found A.R.R.-P. does not know her father; the two are strangers. Therefore, he rejected the argument A.R.R.-P. would not benefit from being freed for adoption finding an order terminating parental rights would "open the door for her to find some permanency." Consequently, "[t]ermination . . . clearly would not do any harm whatsoever."

Concluding the Division's evidence clearly established all four prongs of the statute as applied to each parent, the judge ordered termination of L.R.P. and T.C.R., Sr.'s parental rights and granted the Division's request for guardianship of both children. The parents' appeals ensued.

In reviewing a case in which termination of parental rights has been ordered, we remain mindful of the gravity and importance of our review. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010) ("The process for terminating parental rights is a difficult and intentionally rigorous one that must be satisfied by a heightened burden of proof . . . ."). 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 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." K.H.O., supra, 161 N.J. at 348. See also 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.

In our review of a determination terminating a parent's rights, 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 note the trial judge made very explicit, albeit concise, factual findings from the testimonial and documentary evidence, which included credibility determinations, and identified the clear and convincing proofs supporting each prong of the best interests test. We begin our analysis of the evidence applicable to each parent. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288 (2007) ("Parental rights are individual in nature and due process requires that fitness be evaluated on an individual basis.").

L.R.P.'s attack on the proofs undergirding the satisfaction of the statute's first two prongs suggests the order must be reversed because the judge found no physical harm. See N.J.S.A. 30:4C-15.1(a)(1), (2). The claim lacks merit.

"The absence of physical abuse or neglect is not conclusive" as to satisfying prong one. A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977)) (referring to prong one). Indeed, a parent's substance abuse alone will not support a finding under the first prong of the statutory test, which focuses on the risk of future harm to the child and not on the harm from prior substance use. N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013); N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 494 (App. Div. 2014). Consequently, when no proven actual harm exists, the first prong will none the less be satisfied by proof of imminent danger or substantial risk of harm. A.L., supra, 213 N.J. at 23. A court does not have to wait until a child is "'irreparably impaired by parental inattention or neglect'" before it acts, ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 378 (1999)), in response to a parent's inability to provide even minimal parenting to her child, id. at 379.

Here, the Division's employees recounted multiple instances of L.R.P.'s medical and educational neglect of each child and proved the adverse effect this conduct had on the children's physical well-being, mental health and emotional behavior. A great deal of testimony centered on L.R.P.'s total disregard for A.R.R.-P.'s behavioral issues, which caused disruption in her placements. Dr. Williams' expert testimony confirmed the children's health and development would be endangered by immediate reunification with L.R.P. and no evidence suggested she might be able to parent in the near future. The judge specifically found, at the time of trial, L.R.P.'s conduct had and continued to endanger the children's health, safety, and development, and there was no reasonable prospect she would cease the harmful conduct which precluded the child from enjoying a safe, stable home.

Significantly, L.R.P. remained drug addicted, began using illicit substances in addition to marijuana, and rejected the need for services. She had no grasp of or concern for the physical, emotional and mental health needs of her children and, importantly, she completely stopped visits six months prior to trial. The undisputed impact of L.R.P.'s parenting limitations coupled with her substance abuse provided the trial judge with sufficient, credible evidence to support his conclusion the first and second statutory prongs were met. See D.M.H., supra, 161 N.J. at 393. ("Consistent efforts to maintain and support the parent-child bond are central to the court's determination.").

L.R.P. does not contest the extent and nature of services provided by the Division. She points to what she asserts is a failure to consider the children's maternal great-grandmother as a placement resource and an available alternative to termination of parental rights. See N.J.S.A. 30:4C-15.1(a)(3). The record belies this assertion. The great-grandmother, although notified by the Division, never presented or pursued her interest in securing their placement.

Finally, the unrebutted expert opinion, which the judge found credible and on which he relied, attested to the insecure bond L.R.P. had with the children, who he found would not suffer harm from severing their ties with her. Also, evidence showed a separation of each child from his and her resource family would cause serious and enduring emotional or psychological harm to the child.

We recite our prior admonition to parents facing termination of their parental rights after years of unresolved assistance by the Division, noting: "'A child is not chattel in which a parent has an untempered property right.'" N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 487 (App. Div. 2012) (quoting N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110-11 (App. Div.), certif. denied, 180 N.J. 456 (2004)).

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.

[Ibid. (citations omitted).]

Similarly, the judge found the expert and other evidence clearly and convincingly confirmed A.R.R.-P. would be endangered if reunification with T.C.R., Sr. were ordered. First, T.C.R., Sr. would not be available to provide parenting for approximately four years. His repeated, very serious criminal conduct resulted in continued incarceration. The child had no recognition of T.C.P., Sr. as her father. Moreover, other significant parenting deficits demonstrated he had not in the past and would not in the near future be able to parent his child.

Indeed, instability and lack of permanency adversely affects the development of a child, and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).

The judge's conclusion was not simply based on T.C.R., Sr.'s extended incarceration. He evaluated not only the length of T.C.R., Sr.'s sentence and the nature of his crimes, but also evaluated circumstances of parental unfitness including T.C.R., Sr.'s need to resolve his substance abuse, acquire parenting skills, secure steady employment and stable housing, engage in therapy to gain insight into his repetitive antisocial, criminal behavior, and to learn how to place the interest of his special needs child ahead of his own wants and desires. We note, at trial T.C.R., Sr. admitted he had not pursued any available counseling or drug rehabilitation while in jail. Additionally, the credible testimony of Dr. Williams, grounded on the results of his psychological evaluation, showed the child would not be safe in T.C.R., Sr.'s care.

We conclude the judge properly evaluated all evidence, including T.C.R., Sr.'s testimony, to determine A.R.R.-P.'s best interests. T.C.R., Sr.'s absence was caused by his incarceration. Understanding this fact, the judge assessed "whether [a] delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 507 (2004) (quoting N.J.S.A. 30:4C-15.1(a)(2)). He found further delay harmed the child, which is supported by the substantial, credible evidence.

We also reject the notion the judge failed to properly consider the best interests of the child by terminating parental rights, even though the Division had not identified an adoptive home. T.C.R., Sr. maintains this alone shows termination would do more harm than good. We agree a "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), yet, the trial judge accepted as credible the Division's testimony adoption was very likely, even though an adoptive home was not yet secured.

We emphasize New Jersey's strong public policy favors permanency in a child's residential placement. K.H.O., supra, 161 N.J. at 357-58. The trial judge's conclusion A.R.R.-P.'s need for permanency, which would be achieved in the near future, outweighed T.C.R., Sr.'s rights for possible future reunification was well-grounded on substantial, credible evidence, which clearly and convincingly showed there was no reasonable likelihood T.C.R., Sr. could resolve the obstacles hindering his ability to assume care and custody of his child.

The respective challenges by these defendants to the evidence undergirding the judgment of guardianship are rejected. We find no error and no basis to interfere with the trial judge's conclusion to enter the judgment of guardianship.

1 L.R.P. was unable to identify T.H.P.'s biological father.

2 The Division ultimately closed its file following the 2011 referral after it extended limited services to the family.

3 In addition to kidney disease, A.R.R.-P. was underweight, had a heart murmur, an enlarged heart, rotted teeth, a learning disability and a severe behavioral adjustment disorder; T.H.P. had untreated Sickle cell anemia, speech delays, and demonstrated aggressive behaviors.