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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

V.P.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.L.D., A MINOR.

_____________________________________

October 22, 2013

Submitted September 17, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-115-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.L.D. (Karen A. Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Defendant V.P. (Vanessa)2 appeals from a June 25, 2012 Family Part judgment of guardianship, which terminated her parental rights to her daughter S.L.D. (Sandra) and awarded guardianship to the New Jersey Division of Youth and Family Services (the Division).3 Defendant contends that the Division did not demonstrate by clear and convincing evidence the four prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a). The Law Guardian supports termination and urges us to affirm the trial judge's determination. Having reviewed the record in light of the contentions of the parties and the applicable law, we affirm.

The record reveals that Vanessa has three children, D.D. (David), born October 16, 1994, S.D. (Samantha), born August 8, 1995, and Sandra, born July 29, 1999. While the children lived with her, Vanessa had difficulties maintaining stability. She was involved in violent and abusive relationships with men who also physically abused the children, she abused heroin, and had unaddressed mental illness. Due to her numerous problems, Vanessa was unable to supervise and care for her children. This resulted in David being sexually abused by Vanessa's brother, and in turn David sexually abusing both his sisters. Vanessa also failed to get the children to school on time or at all, and failed to get routine medical care and necessary medication for the children.

The family first came to the Division's attention in 2000, and thereafter the Division received many referrals but never substantiated abuse or neglect during that time. In 2007, as a result of another referral, the Division identified several child welfare concerns and began working with Vanessa to provide services to the family. Vanessa engaged inconsistently in the recommended treatment and failed to get the children the psychological help they needed, including sexual abuse treatment and fire-starting therapy. Vanessa also agreed to never leave her daughters alone with David because of the prior instances of sexual abuse.

On October 23, 2008, the Division obtained custody of the three children when David and Samantha were found alone together in the home, which did not have electricity, heat, or water. The home was extremely dirty, filled with a dozen cats and a great deal of cat feces and unclean litter. The children continued to miss school and when they did attend, they were in dirty clothes and had flea bites.

Initially, the Division placed Sandra with relatives, but they were unable to care for her. In November 2009, the Division placed Sandra with her current resource parent, J.W., who wants to adopt her. Sandra has been identified as having special needs, including cognitive limitations and emotional fragility, and has been classified as needing special education under an individualized education plan.

After the children's removal, Vanessa acknowledged her heroin addiction, but at first she did not attend the services the Division provided, including drug treatment, psychological counseling, family therapy, and visitation. Eventually, she completed the first part of a drug treatment program, but has not engaged in recommended follow-up treatment. In the year before the trial, she began attending therapy sessions more consistently. The Division's inspections of Vanessa's apartment showed that she was able to keep it clean at times; however, at the last caseworker's visit in 2011, it was "worse than ever." She remained unemployed and unable to explain how she planned to support Sandra.

The Division filed a guardianship complaint against Vanessa and Mark for termination of their parental rights to Sandra4 on December 15, 2009. Judge Kimarie Rahill held the guardianship trial on five nonconsecutive days in December 2011 and January 2012. At the trial, Alan S. Gordon, a psychologist, and two Division caseworkers testified for the Division. Alison Strasser-Winston, a psychologist, testified for the Law Guardian, who supported the Division's request for termination. Matthew B. Johnson, a psychologist, Vanessa, and her current boyfriend testified for the defense.

On June 25, 2012, the judge issued a comprehensive written opinion terminating Vanessa's parental rights to Sandra. The judge concluded, based upon the best interests of the child test set forth in N.J.S.A. 30:4C-15.1(a), that there was clear and convincing evidence that Vanessa's rights should be terminated so that Sandra could be adopted.

The judge found that Vanessa had endangered Sandra's health, safety, and development due to the neglectful living environment, substance abuse, inadequate supervision, and exposure to violence and physical abuse, as well as the lack of stability and permanence. She noted that three years after the children's removal from her custody, Vanessa still had not taken responsibility for her actions. While she appeared to have addressed her substance abuse and started to consistently attend therapy, she had not shown that she could provide a stable home for Sandra. She observed that all three psychological experts opined that Vanessa had significant longstanding psychological issues and was not presently able to parent Sandra.

The judge meticulously catalogued the numerous services provided to the mother and the family to correct the circumstances that led to Sandra's removal. She found that the Division had consistently endeavored to remove or ameliorate the circumstances that necessitated the Division's intervention and appropriately explored alternative resources.

The judge also found that Sandra will not suffer greater harm from termination of Vanessa's parental rights than from the permanent disruption of her relationship with her resource parent. She pointed out that the psychological experts agreed that Sandra was flourishing in her foster home, and would likely regress significantly if she had to leave it. They also agreed that Sandra desperately needed stability and that the lack of permanency was causing her much stress.

In the judge's view, the only factor mitigating against termination was Sandra's affection for her mother, but all experts agreed that the resource parent was capable of ameliorating that loss. Consequently, Judge Rahill concluded that weighing the extreme benefits Sandra was receiving in the resource home and the harm that would come to her from leaving that home against the uncertainty and potential instability of returning to Vanessa convinced the judge that the greater harm would come from not terminating Vanessa's parental rights.

From our independent review of the record we agree that substantial evidence exists to support the judge's conclusion. We affirm essentially for the reasons expressed in Judge Rahill's thoughtful and thorough opinion. We add only the following comments.

In a guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007). When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing by clear and convincing evidence 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 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.

These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

On this appeal, our review of Judge Rahill's decision is limited. Ordinarily, we will defer to a trial judge's factual determination unless those findings "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted).

We owe this deference to the trial judge because she has had "the opportunity to make first-hand credibility judgments" and to gain a "'feel of the case'" over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Gauged by those standards, we find no basis to disturb Judge Rahill's credibility determinations, her factual findings, or her conclusion to terminate Vanessa's parental rights.

The first prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(1) requires us to "determine whether the 'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)); see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The second prong relates to parental unfitness and requires the court to decide "'whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). As to the first and second prongs, the evidence is clear and convincing that Vanessa's mental illness, substance abuse, poor judgment, and failure to attend to her children's needs harmed Sandra and that, as of the time of the trial or in the foreseeable future, Vanessa was not and would not be able to safely parent Sandra.

The third prong contemplates that the Division will make reasonable efforts to assist the parent to correct and overcome the circumstances that led to the removal of the child. In re Guardianship of K.H.O., supra, 161 N.J. at 354. Judge Rahill found that the Division had provided Vanessa with a wide array of services. We agree. For three years the Division worked intensively with Vanessa to promote reunification. Nevertheless, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., supra, 161 N.J. at 393.

Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." In re Guardianship of K.H.O., supra, 161 N.J. at 355. In analyzing the evidence in light of this prong, the judge relied heavily on the bonding evaluations and testimony of all three psychological experts. We are in accord with Judge Rahill that, balancing the lack of harm to Sandra from the termination of Vanessa's parental rights with the benefit of remaining in a stable permanent home, termination of parental rights will do much good and minimal harm. A child cannot wait for a parent to become fit. 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).

In sum, we conclude that Judge Rahill did not err in determining that Sandra's best interests require termination of Vanessa's parental rights so that she can be adopted by the present resource parent.

Affirmed.

1 A reorganization of the Department of Children and Families included the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 We use pseudonyms to protect the privacy of the family.

3 Sandra's father, M.D. (Mark), made an identified surrender of his parental rights to Sandra to the resource parent on December 23, 2011, and is not part of this appeal.

4 The complaint did not include the other children because David had been reunited with his father and the permanent plan for Samantha was long-term specialized care.