NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v.M.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5895-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

A.J.M. AND M.L.M., Minors.

_______________________________________

November 26, 2012

Submitted October 30, 2012 Decided

Before Judges Reisner, Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-01-10.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa B. Landsman, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for A.J.M. and M.L.M. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

M.M. appeals from an order entered by the Family Part on June 27, 2011, terminating his parental rights to two minor children, A.J.M. and M.L.M. For the reasons that follow, we affirm.

I.

A.J.M. was born on September 8, 2003, and M.L.M. was born on August 26, 2004. J.M. is the biological mother of the children and M.M. is their biological father. On June 11, 2008, J.M. voluntarily committed herself to Kimball Medical Center (Center) after overdosing on heroin and having suicidal thoughts. The Center informed the Division of Youth and Family Services (Division) of J.M.'s commitment.1 The Center told the Division that J.M. was a poly-substance abuser, had used heroin for fourteen years, and suffered from major depressive disorder.

The Division also learned that M.M. had recently relapsed, was using heroin and Xanax, and had been diagnosed with bipolar disorder as well as poly-substance abuse. The Division additionally learned that M.M. had been evaluated at the Center several times. His last visit was on May 18, 2008, when he overdosed on Xanax.

At the time of J.M.'s commitment, A.J.M. and M.L.M. were staying with a paternal aunt. On June 11, 2008, M.M. and his mother agreed to a safety plan for the children, which provided that M.M. would move with the children to his parents' home, and M.M. would be supervised when he was with the children. M.M.'s mother subsequently informed the Division she was concerned about M.M.'s stability, and she was no longer willing to supervise his contact with the children.

In June 2008, the Division commenced an action in the Family Part seeking custody, care and supervision of the children. Following a hearing on September 11, 2008, the court entered an order granting the relief sought by the Division.

In March 2009, J.M. and M.M. were arrested on drug charges. The trial court thereafter conducted a permanency hearing. The court approved the Division's plan for termination of J.M.'s and M.M.'s parental rights and adoption of the children by their maternal grandparents. In June 2009, the children were placed in the care of their maternal grandparents in Florida. On July 2, 2009, the Division filed its guardianship complaint.

In November 2009, M.M. told a Division caseworker he had relapsed and was using heroin. M.M. was on probation at the time, and he violated the conditions of probation by using controlled substances. In April 2010, M.M. was re-incarcerated. Several months later, J.M. surrendered her parental rights to the children. M.M. was admitted to the Drug Court program, and in July 2010, he began in-patient drug treatment.

The trial court conducted a trial on the Division's guardianship complaint and on June 27, 2011, filed a written opinion in which it concluded that the Division had presented clear and convincing evidence establishing all four prongs of the "best interests" test for termination of parental rights established by New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1(a). The court entered an order dated June 27, 2011, terminating M.M.'s parental rights to the children. This appeal followed.

M.M. concedes that the Division met the first prong of the best interests test and established that the children had been harmed by their relationship with him. M.M. argues, however, that the Division failed to show: (1) he is unable or unwilling to eliminate the harm; (2) it made reasonable efforts to eliminate the reasons for the children's removal from his care; and (3) termination of his parental rights will do more harm than good.

II.

A parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Nevertheless, "[p]arental rights, though fundamentally important are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. "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." Ibid.

The best interests standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following criteria:

(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).]

These criteria "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.

The trial court's factual findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We will not disturb a trial court's findings "'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) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

A. Second Prong of the Best Interests Test.

M.M. argues that the Division failed to establish that he is unable or unwilling to eliminate the harm to the children. In support of that argument, M.M. asserts he has been "sober" in the fourteen months before the guardianship trial began, has obtained employment, continued to engage in substance abuse treatment, and completed required services.

As we stated previously, the second prong of the best interests test requires the Division to show that the parent is unable or unwilling to eliminate the harm to the child, and a delay in permanent placement will cause the children further harm. N.J.S.A. 30:4C-15.1(a)(2). "The second prong of the statutory standard relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. This can be shown if a parent has not provided a "safe and stable home for the child" and a "delay in permanent placement" will cause additional harm to the child. Ibid.

Here, the trial court found that "M.M. repeatedly failed to eliminate the initial harm" that led to the removal of the children from his care. The court stated that M.M. had "failed miserably in overcoming the harm and providing the children with a safe environment." The court noted that M.M. never completed a drug rehabilitation program, continued to use illegal drugs, and continued to engage in criminal conduct.

The court additionally noted that, although defendant had finally entered a substance abuse treatment program, his decision to do so was not voluntary but was the result of his participation in the Drug Court program. The court found that, once M.M. was discharged from the Drug Court and the threat of incarceration was lifted, there was a substantial risk he would relapse to the use of illegal drugs. The court also took note of M.M.'s failure to provide financial support for the children, and his history of domestic violence.

M.M. contends that the record does not support the court's finding that it is likely he will relapse and that he cannot provide a safe and stable home for the children. We do not agree.

Here, the court relied upon the testimony of Dr. Alan J. Lee, Psy.D. (Dr. Lee), as support for its findings. In December 2008, Dr. Lee performed a psychological evaluation of M.M. and diagnosed M.M. with, among other conditions, poly-substance abuse, and a maladaptive personality with borderline and antisocial traits. Dr. Lee was concerned that M.M. could not function as an independent caregiver for the children.

Dr. Lee pointed out that M.M. had diminished functioning, a history of poly-substance abuse, a history of criminal conduct and marital discord, and lacked employment and income. These factors, combined with his personal and character traits, made it unlikely M.M. could parent any child.

Dr. Lee recommended that M.M. undergo psychiatric and substance abuse evaluations, and have frequent, random urine drug tests. He additionally recommended that M.M. complete a long-term anger management class, domestic violence counseling, and nine-to-twelve months of weekly counseling.

In July 2010, Dr. Lee performed another psychological evaluation of M.M. The doctor noted that since the previous evaluation, M.M. had made little progress in any of the areas that needed to be addressed. Dr. Lee noted that M.M. had continued his poly-substance abuse and criminal behavior. According to Dr. Lee, M.M.'s conduct evidenced impulsivity, self-absorption, and possible bipolar disorder. In addition, he lacked employment.

Dr. Lee also noted that M.M. had done little to address these issues until he entered a substance abuse program, as required by the Drug Court. Dr. Lee opined that M.M. would not be capable of functioning as an independent caregiver for a minor child within the foreseeable future. We are satisfied that the record supports the court's finding that M.M. will likely relapse to drug abuse and cannot provide a safe and stable home for the children.

M.M. also argues that the trial court erred by finding that he suffers from bipolar disorder and improperly relied upon unsubstantiated allegations of domestic violence. Assuming the court's finding that defendant suffers from bipolar disorder was erroneous and the allegations of domestic violence were not substantiated, we are convinced the errors were harmless. We are satisfied that the other evidence relied upon by the trial court was more than sufficient to support its determination that the Division met its evidentiary burden on prong two.

B. The Third Prong of the Best Interests Test.

M.M. contends that the Division did not make reasonable efforts to help him correct the circumstances that led to the removal of the children from his care.

The third prong of the statutory standard requires the Division to establish that it "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." N.J.S.A. 30:4C-15.1(a)(3). To satisfy this part of the test, the Division must establish that it undertook "diligent efforts to reunite the family." K.H.O., supra, 161 N.J. at 354.

The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome the circumstances that necessitated the placement of the child into foster care." Ibid. Whether the Division's efforts were reasonable is not measured by their success. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

The trial court found that the Division made diligent efforts to help M.M. participate in services but at "every turn [he] failed to do so." The record supports the court's finding. The Division offered M.M. substance abuse evaluations, individual counseling, counseling for anger management and domestic violence, and parenting classes. The record shows that M.M. repeatedly failed to avail himself of these services.

The Division also considered alternatives to termination of parental rights. We are satisfied that there is sufficient credible evidence in the record to support the trial court's determination that the Division met its evidentiary burden on the third prong.

C. The Fourth Prong of the Best Interests Test.

M.M. argues that the Division failed to prove that termination of his parental rights will not do more harm than good.

The fourth prong of the statutory standard requires the court to determine "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the child's] natural parents than from the permanent disruption of [the child's] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong, and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy" the fourth prong of the statutory standard. Id. at 363.

Dr. Lee performed bonding evaluations which showed that a bond existed between the children and their maternal grandparents. According to Dr. Lee, the bonding evaluations indicated that at best there was an "insecure and ambivalent" relationship with no sign of a positive bond between the children and M.M. Dr. Lee determined that there was "a relatively low risk of . . . harm" if M.M.'s relationship with the children was severed.

At the trial, M.M. presented testimony from Dr. Jesse Whitehead, Jr., Psy.D. (Dr. Whitehead), who opined that termination of M.M.'s parental rights would do more harm than good. Dr. Whitehead performed a bonding evaluation of M.M. and the children. He said that that the children had bonds with their father, and they had not developed bonds with their maternal grandparents. Dr. Whitehead stated that he believed the children would be harmed if their relationships with their maternal grandparents are severed. He said the harm would not be irreparable.

The trial court found Dr. Lee's testimony more credible and persuasive than Dr. Whitehead's testimony. The court noted that Dr. Whitehead had not conducted evaluations of the bonds between the children and their maternal grandparents. The court also pointed out that Dr. Lee's testimony was supported by the testimony of Elizabeth C. Prudenti (Prudenti), the children's therapist in Florida.

Prudenti testified that A.J.M. knew her parents were not caring for her due to drug abuse. A.J.M. said she wanted to be adopted by her maternal grandparents, and she did not want to wait for her father "to get better." Prudenti further testified that if A.J.M. was reunited with her father and the placement failed, A.J.M. would lose her ability to trust others. She would not feel safe, her anxiety would increase, and she would lose her sense of belonging.

Prudenti additionally testified that M.L.M. missed her father and had expressed a desire to see him but M.L.M. did not say she wanted to live with him. Prudenti opined that M.L.M. required permanency, and reunification of the children with M.M. would not be in their best interests. Prudenti noted that the maternal grandparents were providing the children with what appeared to be a safe and nurturing environment.

We are convinced that there is sufficient credible evidence in the record to support the court's finding that termination of M.M.'s parental rights to the children will not do more harm than good. Deference to a trial court's factual finding is particularly appropriate "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

Affirmed.

1 We note that the Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.