NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. P.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1713-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

P.J.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.A.J., a minor.

___________________________________

November 30, 2012

 

Submitted October 11, 2012 - Decided

 

Before Judges Sapp-Peterson, Nugent and Haas.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-173-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for A.A.J., a minor (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

P.J., the biological mother of two daughters, J.J., born August 2, 1996, and A.A.J., born March 2, 2010, appeals from the Family Part order terminating her parental rights to A.A.J. and granting guardianship to the Division of Child Protection and Permanency ("Division"). We affirm.

The Division first became involved with P.J. in 1998 after receiving referrals primarily alleging environmental neglect of J.J. There were also later allegations that P.J. was not ensuring J.J.'s attendance at school.

Ten days after A.A.J.'s birth, the Division received a report from a woman later identified as E.G.'s2 mother reporting that her seventeen-year-old son was having sexual intercourse with a forty-one-year-old woman he met on "MySpace" as well as with the woman's twelve-year-old daughter. The reporter identified P.J. as the forty-one-year-old woman. On March 12, the Division took J.J. and A.A.J. into protective custody by emergency removal. A.A.J. has been in her current foster home since May 2010 and has had no contact with P.J. in light of a "no contact" order in effect.

P.J. and E.G. were subsequently arrested. On October 26, 2010, P.J. pled guilty to conspiracy to commit sexual assault, N.J.S.A. 2C:5-1 and 14-2c(4), as part of a negotiated plea agreement. In exchange for her guilty plea, the State recommended that she receive a six-year custodial sentence. She was sentenced in accordance with the plea agreement on January 14, 2011 to a six-year aggregate custodial term.

On October 13, 2010, E.G., who had been identified as A.A.J.'s father, executed a voluntary surrender of his parental rights. The Division filed a verified complaint for guardianship on April 12, 2011. The court conducted the guardianship trial over two non-consecutive days in October 2011. The Division presented two witnesses: its case-worker, Samantha DeVita, and its expert, Dr. Robert Miller, a psychologist. In addition to her own testimony, defendant presented her aunt A.J. as a witness. A.J., at the time, was residing in Florida and therefore provided her testimony telephonically.

In a written decision issued on October 26, 2011, Judge Mark J. Nelson found that the Division established, by clear and convincing evidence, termination of P.J.'s parental rights was justified. The judge accepted Dr. Miller's conclusion that P.J. has a borderline personality disorder and stated that while P.J. did not actually harm A.A.J., she committed such an "egregious breach of parental trust and lack of judgment" with regard to J.J., that A.A.J. or "any child that [P.J.] would parent [faces] risk of harm."

In addition, the court noted that based on Dr. Miller's report and testimony, as well as P.J.'s testimony, P.J. clearly views herself as a passive victim and "accepts little to no responsibility for her own actions." He emphasized that P.J. was made aware of her psychological problems as early as 2001 and "[a]lthough psychiatric and psychotherapeutic treatment [were] recommended . . ., [P.J.] has not engaged in consistent treatment in order to address [them]." Judge Nelson found P.J. "demonstrated disruptive parental capacity to provide safety, care and emotional nurturance for her two children." Furthermore, he adopted Dr. Miller's opinion that P.J. displayed a "lack of emotional insight and unwillingness or inability to address the history of depression and personality disorder." Therefore, he concluded that the Division showed, by clear and convincing evidence, that P.J. "is either unwilling or unable to eliminate the harm facing" A.A.J.

The court was also satisfied that the Division met its burden of making reasonable efforts to provide P.J. with ameliorative services since 1998. The court emphasized that as an alternative to termination of parental rights, the Division considered over ten family members as possible placements for A.A.J. and J.J., and that for various reasons, these relatives were ruled out. The court, as a result, concluded that the Division had established the third prong by clear and convincing evidence.

Finally, citing Dr. Miller's evaluations, the court found "absolutely no evidence . . . that termination of parental rights will do more harm than good" and concluded that, as A.A.J. was currently in a pre-adoptive home, only by terminating P.J.'s rights could that home become her permanent home. The court entered a judgment of guardianship terminating P.J.'s parental rights to A.A.J. The present appeal ensued.

On appeal, P.J. raises the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN RULING THAT P.J.'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.

A. THE CHILD'S HEALTH AND DEVELOPMENT WAS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP.

 

B. P.J. WAS ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILD AND WAS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

 

C. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.

 

D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We have considered the arguments advanced in support of the point raised in light of the record and applicable legal principles and reject each argument advanced. We are satisfied the record demonstrates that the Division proved, with clear and convincing evidence, that termination of P.J.'s parental rights was in the best interests of A.A.J. under the four-prong test set forth in N.J.S.A. 30:4C-15.1a:

(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.

 

We therefore affirm, substantially for the reasons advanced by Judge Nelson in his October 26, 2011, cogent and well-reasoned written opinion.

We do, however, specifically address P.J.'s contention that it was undisputed that she never endangered A.A.J. because the actions that led to P.J.'s incarceration occurred before A.A.J. was born, and, therefore, the evidence did not support the conclusion that there was harm to A.A.J. resulting from the parental relationship, which is prong one of the best interests test for determining whether there has been clear and convincing evidence that a parent's parental rights should be terminated. We disagree.

Prong one of the best interests test requires the court to consider whether the parent has harmed or is likely to continue to harm the child. N.J.S.A. 30:4C-15.1a(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). However, there need not be actual physical harm to a child to endanger his or her health and development. The potential for harm is sufficient. Id. at 348-49.

Contrary to P.J.'s contentions, Judge Nelson's findings were supported by credible evidence. It is incontrovertible that P.J. struggled to provide J.J. with basic care, as evidenced by the Division's extensive involvement with the family since J.J. was barely one year old. P.J.'s parental deficit steadily escalated to criminal proportions when she engaged in sexual acts with then twelve-year-old J.J. and permitted E.G. to do the same. Dr. Miller testified, after evaluating P.J. twice, that because P.J. suffers from borderline personality disorder and other psychological deficiencies that compel her to prioritize her own needs over that of her children, any child she parents is at risk of harm. Dr. Miller also testified to the devastating psychological effects that P.J.'s actions have had on J.J. Based on this record, it was unnecessary to demonstrate actual harm to A.A.J. As we observed in Dep't of Children and Families, Division of Youth and Family Serv. v. C.J., 414 N.J. Super. 472 (App. Div. 2010), certif. denied, 207 N.J. 188 (2011):

Predictions as to probable future conduct can only be based upon past performance. . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to kill or abuse each child. Evidence of parents' fitness or unfitness can be gleaned not only [from] their past treatment of the child in question but also from the quality of care given to other children in their custody.

[Id. at 482 (quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)).]

 

We therefore discern no error in Judge Nelson's finding that the Division satisfied the harm requirement under the first prong of the best interests test, notwithstanding the absence of actual physical or emotional harm to A.A.J.

As to P.J.'s argument that the trial judge improperly used her incarceration against her, our Supreme Court has recognized that "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 352-54). Specifically, incarceration is a factor that "impairs a parent's capacity to provide proper child care" because the parent will have a difficult time performing the tasks and responsibilities associated with raising a child. In re the Adoption of Children by L.A.S., 134 N.J. 127, 138 (1993). As a result of the egregious harm P.J. caused to J.J., she had been incarcerated for nearly two years at the time of the trial and therefore was unable to care for A.A.J. More importantly, however, Judge Nelson did not rely solely upon P.J.'s incarceration as a basis to find that the Division satisfied the first prong. Rather, as noted earlier, the judge, in addition to her incarceration, considered P.J.'s parenting towards J.J., which reflected egregious and unspeakable poor judgment.

Our review of a trial court's termination of parental rights is limited to "determining whether [the] decision . . . was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "Clear and convincing evidence" is evidence that results in a "firm belief of conviction as to the truth of the allegations sought to be established." Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We "also recognize that because of the family courts' special expertise in family matters, appellate courts should accord deference to family court fact[-]finding." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (citations and quotations omitted). Such factual findings 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. 1983) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)); Meshinksy v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988). Nonetheless, we accord no such deference to "a trial court's interpretation of the law and the legal consequences that flow from established facts[,]" which we review de novo. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

M

easured under these standards, there is clear and convincing evidence in the record supporting Judge Nelson's conclusion that the Division satisfied all four prongs in terminating P.J.'s parental rights and granting guardianship to the Division. We discern no basis to disturb this determination.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2

It is disputed whether E.G. was J.J.'s or P.J.'s paramour.