NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.U.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1942-12T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

C.U.B.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.E.F. AND A.K.S., minors.

___________________________________

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

F.T.F.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.E.F., a minor.

___________________________________

November 21, 2013

Submitted November 6, 2013 - Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-137-12.

Joseph E. Krakora, Public Defender, attorney for appellants (Kimmo Z.H. Abbasi, Designated Counsel, on the brief in A-1938-12T3; Howard P. Danzig, Designated Counsel, on the brief in A-1942-12T3).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Delia A. De Lisi, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors C.E.F. and A.K.S. (David R. Giles, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, defendant C.U.B., the mother of minors C.E.F. ("Charley")1 and A.K.S. ("Alex"), and defendant F.T.F., the father of Charley only, contest the Family Part's termination of their respective parental rights following a guardianship trial. We affirm.

The record shows that both defendants had severely troubled childhoods, with circumstances that unfortunately contributed to their inability to care for their own children. C.U.B. was herself involved with the Division of Youth and Family Services (the "Division")2 as a child, and was placed in foster care as the result of her own mother's drug abuse. C.U.B. gave birth to her first child in 2005 when she was the age of sixteen. Soon thereafter, C.U.B. surrendered that first child to her own maternal aunt, J.C. C.U.B. has had a long history of drug abuse, depression, unemployment, and housing problems.

F.T.F., who is two years younger than C.U.B., lived briefly with his biological mother as a child, but was eventually removed from her care. For a time, F.T.F. lived with his grandmother until her death in 2006, and then with his paternal aunt thereafter. He dropped out of high school in the eleventh grade, but later earned his GED in 2009 while confined in juvenile detention. F.T.F. has had an extensive offense history that involved eight juvenile arrests, mostly for possession with intent to distribute controlled dangerous substances. Consequently, F.T.F. has been incarcerated both as a juvenile, and now as an adult. More recently, during the time of the guardianship trial, F.T.F. was convicted of two weapons charges, and sentenced to a three-year term of incarceration with no eligibility for parole. He has been diagnosed with substance abuse and anger management problems.

The child common to both defendants, Charley, was born on April 17, 2008. While she was pregnant with Charley in early 2008, C.U.B. sought help from the Division, indicating that she had tried to commit suicide. The Division provided C.U.B. with drug treatment services, and she initially responded positively to that treatment. However, the Division reopened the case at C.U.B.'s request after the birth of her third child, Alex, on April 19, 2009.3

The record shows that Charley was born with significant medical issues and special needs as the result of suffering a stroke in utero. The younger half-sibling, Alex, does not have special needs.

In September 2009, the Division removed both Charley and Alex from C.U.B.'s care and placed them with C.U.B.'s maternal aunt, J.C., who was also continuing to care for C.U.B.'s first child. According to expert evaluations and other proofs presented by the Division at trial, the children have been well cared for by J.C. and have bonded with her. J.C. wishes to adopt the children.

The Division extended numerous services to stabilize C.U.B., but due to her underlying drug and mental health problems, she was unable to become stable enough to take responsibility for the children. She has relapsed several times, testing positive for PCP use in May 2011, and also in August 2011.

F.T.F., meanwhile, was referred by the Division for anger management services. The record shows that he exhibited hostility to the provider staff, and left the program within two weeks. In the only drug screen that F.T.F. submitted to, he tested positive for marijuana. The Division also offered F.T.F. parenting skills classes, bonding assessments, substance abuse counseling, and other services. As of the time of trial, F.T.F. had not developed a significant relationship with Charley, and has apparently made little effort to reunite with his son during periods of non-incarceration.

At trial, the Division presented testimony from a case worker and an expert psychologist who evaluated both defendants. The Division also relied upon extensive records. Neither defendant testified at trial, nor did they present any witnesses. The Law Guardian for both minors supported the Division's request for termination.

The trial judge, Bernadette N. DeCastro, J.S.C., issued a written opinion on December 4, 2012, concluding that the Division had met its burden of proving all of the statutory criteria for termination by clear and convincing evidence.

On appeal, each defendant contends that the Division's proofs were insufficient to establish the criteria for termination. As a secondary aspect of his appeal, F.T.F. contends that the trial court was without legal authority to terminate his rights to Charley in a Title 30 guardianship proceeding because the Division had not first established in a Title 9 proceeding that he had abused or neglected Charley.

In evaluating the points raised on appeal, we evaluate the same well-known four statutory factors for termination that Judge DeCastro analyzed in her written opinion. The Division must establish, in particular, that:

(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 N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

When applying this four-part test, the court must be mindful not only of a defendant's constitutionally-protected interests as a parent, see In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), but also of the child's best interests and his or her need for permanency, see In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

Our scope of review in considering defendants' challenges to the trial judge's termination rulings is limited. A reviewing court should "not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). This is so because "the trial court . . . has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (internal quotation marks omitted)). We must also be mindful of the Family Part's "special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Applying that limited scope of review and the applicable law to the record, we affirm the termination of defendants' parental rights, substantially for the cogent reasons detailed in Judge DeCastro's written opinion. Her analysis of the four-part criteria for each defendant and each of the two children is unassailable. The simple truth is that neither defendant has shown the capacity, either presently or in the foreseeable future, to care for these children, one of whom has undisputed special needs. By comparison, the children have bonded with their maternal great-aunt, J.C., and would suffer harm if removed from her care and from the company of their half-sibling, C.U.B.'s first child, who also resides with J.C. The best interests of Charley and Alex clearly warrant termination.

F.T.F.'s procedural argument that Judge DeCastro lacked the authority to terminate his rights to Charley because there was no opinion finding his abuse or neglect in a Title 9 proceeding is patently without merit. See R. 2:11-3(e)(1)(E). "[T]he Division] may bring an action for the termination of parental rights under . . . N.J.S.A. 30:4C-15 without first bringing an [abuse-or-neglect] action under Title 9." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (quoting N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010)); see also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 556 (1994) ("[T]ermination proceedings, which are brought pursuant to N.J.S.A. 30:4C-15, do not require a prior determination of abuse or neglect.").

Affirmed.

1 We use fictitious names for the minors for ease of reference.

2 The Division is now known as the Division of Child Protection and Permanency. See L. 2012, c. 16, eff. June 29, 2012.

3 The father of Alex has surrendered his own parental rights and consequently did not participate in the guardianship trial or in the present appeals.