NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. G.W.M., JR

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NOT FOR PUBLICATION WITHOUT THE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 binding only 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 NO. A-0

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

G.W.M., JR.,

Defendant-Appellant,

and

N.L.,

Defendant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.M. AND A.M.M.,

Minors.

___________________________________

November 4, 2016

Submitted September 29, 2016 Decided

Before Judges O'Connor and Whipple.

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

Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Christie Pazdzierski, 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, G.W.M., Jr. (Glen), appeals from a January 8, 2016 judgment of guardianship terminating his parental rights to his minor children, Nina and Amy.1 We affirm.

On September 4, 2013, both children were removed from their biological parents, N.L.(Nora)2 and Glen, after Amy tested positive for opiates at birth and began treatment for opiate withdrawal symptoms. Upon the filing of an Order to Show Cause and Verified Complaint by the Division of Child Protection and Permanency (the Division), the Court determined removal was required based on imminent danger to the children's life, safety, or health because of Nora's admitted addiction, Glen's suspected misuse of pain medication, and his refusal to release prescription records. After the Division ruled out placement with relatives, both children were placed with the same resource family where they have remained.

Nora tested positive for opiates, as well as benzodiazepines, and admitted to abusing Oxycodone and other medications for two years, including during her pregnancy with Amy. Nora reported she had little prenatal care and had been diagnosed with depression after her earlier pregnancy.

A Division worker went to the family home and spoke with Glen, who admitted he was prescribed Oxycodone and Xanax, but was unable to produce proof of his prescriptions. He produced an empty prescription bottle for Xanax, which had only been filled three days before. Glen stated the bottle had broken but admitted he sometimes took more than the prescribed dosage, and he had given his pills to his sister-in-law to dispense to him every few days. Glen stated he was unaware Nora had been taking pills from him. Glen refused to sign a release for the Division to obtain pharmacy records.

The Division worker also confirmed Glen had a conviction for driving under the influence of pain medication in June 2012, while Nina was in the vehicle with him. The Division worker observed the home had exposed wiring, minimal food, a lack of smoke detectors, and a broken refrigerator. On March 7, 2014, after a fact-finding hearing, the trial judge found by a preponderance of the evidence, Nora had abused and or neglected her daughters because of her addiction to prescription medication, which resulted in Amy being addicted to opiates at birth and rendering Nora unable to safely parent Nina.

The Division's plan for reunification of the family was to provide substance abuse and psychological evaluations, drug treatment, supervised parental visits, parenting classes, and family team meetings. Glen tested positive for oxycodone and suboxone at his first substance abuse evaluation and was referred to a drug treatment program. He missed five intake appointments at the program, and his case was closed for non-compliance. He subsequently refused to engage in further drug treatment and failed to complete other court ordered services. Although he attended visits with his daughters, his attendance was inconsistent. Glen and Nora often arrived late or cancelled the visits. Glen went six months without visiting his daughters in 2014.

A permanency hearing was conducted on August 8, 2014, wherein the trial judge accepted the Division's proposal for termination of parental rights followed by adoption. The judge determined it was unsafe to return the children to the care of Nora and Glen, because both were inconsistent with treatment and continued to struggle to maintain sobriety. The judge noted the Division's reasonable efforts towards reunification had not been successful. The judge ordered Glen to cooperate with updated substance abuse evaluations, psychological evaluations, and random urine screens; the judge ordered the Division to continue to provide visits between the parents and children. The Division referred Glen for psychological and bonding evaluations with Dr. David Brandwein. He missed the first three appointments, but bonding evaluations were eventually conducted between Glen and the children, as well as between the resource parents and the children. Glen was evaluated by Dr. Brandwein while incarcerated at the Ocean County Jail on April 17, 2015. The bonding evaluation with Glen and the children occurred on June 10, 2015, in the Ocean County Courthouse.

The guardianship trial commenced on September 22, 2015. Two Division caseworkers testified about the Division's efforts and the lack of progress made by both parents. Dr. Brandwein testified about the evaluations of Glen, the children, and the resource family. Dr. Brandwein testified Glen lacks the capacity to attenuate grief resulting from the children's separation from the resource mother, while the resource parents have the capacity to attenuate Nina's grief reaction following a termination of parental rights. He further opined there would be no grief reaction for Amy if Glen's rights were terminated. Dr. Brandwein noted Glen's minimal compliance with court-ordered treatments and evaluations and opined for Glen to be reunited with his children, he would need to be released from jail and attend substance abuse treatment, medication management, individual therapy, and twelve-step meetings; he would also need housing and vocational assistance.

Dr. Brandwein testified Glen underestimated the effects the children would suffer if removed from the resource parents after two years in their care. Glen also underestimated his ability to address his addiction, which Glen thought would be easy after five months in jail. Dr. Brandwein testified that five months sober in a controlled setting, such as jail, was not sufficient to show sobriety.

The trial court entered a judgment of guardianship on January 8, 2016, after rendering detailed findings in an oral opinion. This appeal followed.

On appeal, Glen argues the judgment of guardianship should be reversed because the Division failed to prove two of the four prongs of the N.J.S.A. 30:4C-15.1(a) "best interests of the child" test by clear and convincing evidence. The trial court applied the four factors required under N.J.S.A. 30:4C-15.1(a) and found the Division met its burden on all four factors. Glen only challenges the trial judge's findings relating to prongs two and four. Glen argues the Division failed to prove by clear and convincing evidence termination of parental rights will not do more harm than good and the evidence failed to prove Glen was unwilling or unable to eliminate the harm facing his children. We disagree.

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). However, "[p]arental rights . . . are not absolute. The 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) (citation omitted).

Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the basis that such termination is 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 [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 interest 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.

"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 citations 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).

The second prong of the best interest test relates to parental unfitness, as well as "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348, 352. Glen asserts he demonstrated the ability to remedy issues preventing reunification with his children because of his ability to remain drug-free and his strong bond with Nina, facts he maintains were overlooked by the trial judge. The trial judge rejected such assertions, finding neither parent had resolved the substance abuse issues, unstable housing, incarceration, and unemployment that led to the children's removal.

The judge found Glen, in particular, did not engage in services offered by the Division, including substance abuse treatment, psychological evaluations, and parenting classes. He frequently cancelled or failed to show up for scheduled visitations, disappearing for months at a time. The record demonstrates Glen was unable to provide a safe and stable home for his daughters. The trial judge noted Glen's strong bond with Nina but did not find it sufficient to show Glen could eliminate the harm to his children, and he could not be an independent caregiver for his children.

The fourth prong of the child's best interest test asks whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This standard does not require a showing that no harm will come from removal, but after balancing both relationships, whether more harm will come to the child from terminating the relationship with their natural parents than from terminating the relationship with the resource parents. K.H.O., supra, 161 N.J. at 355. This prong "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).

Glen argues the trial judge made erroneous determinations based upon Dr. Brandwein's speculation about Nina's relationships with her foster parents. He asserts Nina has no bond with the foster father and further claims equal harm will occur if Nina loses either her relationship with Glen or the foster parents. Glen contends Dr. Brandwein relied on speculation rather than evidence the resource mother's relationship with Nina would last, and Dr. Brandwein's opinion erroneously relied on the contingencies not yet demonstrated to be successful, and therefore, the Division failed to meet its burden.

Glen also asserts, because of his bond with Nina, Nina should not be separated from him. Further, because Nina and Amy are bonded to each other, neither child should be separated from him. Defendant thus argues harm will come to both children because of termination of parental rights, and the trial court should have considered that argument.

However, Glen inaccurately represents the testimony of Dr. Brandwein, who stated Nina's bond with the resource father "certainly did not have the valence that [he] observed with [Glen]"; however, the bond existed and was growing. Glen's argument regarding speculation ignores that Dr. Brandwein's clinical expertise was accepted by the trial court as credible based upon his testimony regarding the psychological and bonding evaluations conducted prior to trial. Moreover, the trial judge's findings, based on substantial credible evidence in the record, illustrate the potential harms were not equal.

The trial court properly determined there was sufficient evidence to satisfy prong four. The trial judge considered evidence as to each of the two children individually, finding by clear and convincing evidence that each was flourishing in their foster home, and Glen had not made sufficient progress to safely parent either child or ameliorate harm to them if placed in his care. We discern no reason to disturb that determination.

Affirmed.

1 We use pseudonyms to protect the identity of the family and for ease of reference.

2 Nora has not appealed the judgment of guardianship.