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

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NOT FOR PUBLICATION WITHOUT THE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.

J.H.,

Defendant-Appellant.

__________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

T.H.,

Minor.

__________________________________________

September 20, 2013

Submitted September 9, 2013 Decided

Before Judges Yannotti, St. John and Leone.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FG-18-0103-09.

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

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

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

PER CURIAM

We review challenges to a Family Part judgment of guardianship terminating the parental rights of defendant J.H. and permitting the Division of Youth and Family Services (the Division) to secure his child's adoption. On appeal, J.H. argues the trial court's decision is unsupported by clear and convincing evidence. We disagree and affirm.

T.H. was born on March 4, 2007. Shortly after her birth, on March 6, 2007, the Division filed a verified compliant for custody of T.H. Her mother, T.C., and father, J.H., were teenagers who had received Division services and carried on a relationship while placed together in a Division foster home. On March 9, 2007, the court granted J.H. supervised visits with T.H. On March 12, 2007, the court ordered T.H. and her mother to be placed in the same foster home. On April 13, 2007, J.H. was granted bi-weekly visits with T.H. to be supervised by the Division.

T.H. and her mother were moved to a residential facility known as Apostle House, and its staff agreed to supervise J.H.'s visits with T.H. However, Donald Czerniach, a Division worker, objected and insisted that Apostle House deny the visits. J.H. went to Division offices and demanded a visit with T.H. The police were called and J.H. left. On April 23, 2007, J.H. went to Apostle House and requested a visit but was advised that he had not been approved for visits.

Following complaints by Apostle House regarding T.H.'s mother, the mother was discharged. Subsequently, on July 10, 2007, T.H. was placed with her maternal great-great aunt, B.H. At the time of the placement, T.H. was four months old. T.H. has since continued to reside with her great-great aunt, and, at the time of trial, T.H. was four and one-half years old.

On January 6, 2008, J.H. was arrested for stealing a car and eluding police. He was detained at Middlesex County jail until he was sentenced and sent to Mountainside Reformatory School. J.H. had monthly visits with T.H. beginning in the spring of 2009, while he was at Mountainside Reformatory School. While at Mountainside, J.H. completed parenting classes, anger management, and vocational training. Also while he was incarcerated, the Division conducted a substance abuse evaluation. J.H. indicated that he had previously been in treatment for marijuana use, and had been in and out of treatment programs at least eight times. J.H. was released on February 25, 2010. Upon release from incarceration, the Division recommended intensive outpatient treatment. Thereafter, on March 23, 2010, J.H. was again arrested. In April 2010, the Division referred him for substance abuse counseling. However, J.H. failed to comply with services and he was incarcerated again from May 29, 2010 until June 2, 2010, for a parole violation. It was necessary for J.H. to comply with substance abuse treatment before he could be referred for additional services offered by the Division, as those services required him to be drug free as part of his participation. However, J.H. failed to comply with Division services stating that he was too busy.

Upon release, J.H. lived in Philipsburg, while T.H. continued to reside with B.H. in Newark. The Division provided J.H. with train tickets to facilitate visitation with T.H. The Division also offered to assist J.H. with transportation from Philipsburg to Somerset so that he could take advantage of the train.

J.H. was again incarcerated on January 13, 2011, until March 24, 2011. On June 17, 2011, J.H. was arrested yet again. J.H. was also arrested on September 23, 2011. Then on October 12, 2011, he was arrested and incarcerated until March 2, 2012. J.H. was arrested again that same day for failure to pay fines, but was immediately released. In May 2012, J.H. went to family and community services to obtain substance abuse services, nevertheless, he tested positive for marijuana in May and June 2012.

On July 25, 2008, the Division filed a verified complaint for guardianship of T.H. T.H.'s mother, T.C., entered an identified, voluntary termination of her parental rights on February 2, 2011. A guardianship trial, regarding termination of J.H.'s parental rights, began on June 18, 2012. At trial, B.H. testified that she had been raising T.H. since she was four months old and that she was committed to adoption. She explained that she would take T.H. to visit J.H. because she wanted T.H. to have a relationship with her father. B.H. also has custody of T.H.'s two brothers, who T.H. loves and is very connected with. B.H. is aware of kinship legal guardianship but she wants to adopt T.H. and her two brothers. She further stated that T.H. makes it known to her that she does not want to be anywhere else and wants to remain in B.H.'s care.

Latoya Kennedy, a Family Service Specialist II and the family's caseworker since March 2009, also testified at trial. Kennedy stated that J.H. has not completed services, and while he has gone to substance abuse evaluations, he has not followed through with treatment and completion of services. She further testified that it was difficult to make any plans for T.H. because of J.H.'s recurring incarcerations.

Dr. Alan S. Gordon, an expert in the area of psychology, also testified. Dr. Gordon conducted four psychological and three bonding evaluations of J.H. He stated that when he saw J.H. for the first time in 2008,

I felt that he would not be able to parent [T.H.] at that time. He had a fairly negative background of several arrests, started smoking marijuana at the age of nine, was in Day Top Village at the age of 14. Had stated that he was arrested at least ten times, had been at the youth house. And at that time we did psychological tests that also indicated that he would not be able to parent.

Dr. Gordon stated that his opinion had not changed, and that he did not feel J.H. would be able to parent T.H.

Regarding the bond between J.H. and T.H., Dr. Gordon stated, "It's an insecure bond meaning that [T.H.] does know her father, she knows who he is, but he is not the one that she looks for for her basic needs of food, clothing, shelter, and protection, and stability." Regarding the bond between B.H. and T.H., Dr. Gordon testified that, "It's a strong bond and it has grown over the years." Dr. Gordon further opined that,

At this point removing [T.H.] from Ms. [B.H.] would be removing any birth child from their birth parent. This is the person that has given her the most consistent care and love. At two years old it would be dangerous to remove a child from a parental figure. At four and a half, I have never heard of it before. . . . [I]f we were going to remove her, if the Court decides, you would have to move her into a situation that would be extremely stable. That somebody who can offer her and ameliorate any harm that would be done if removing her from Ms. [B.H.]. . . . I didn t find that [J.H.] had stability in his life during at any time during our four evaluations. And even at the last evaluation, he still stated that he needed a place to stay, he needs a job, he has to establish stability, he has to follow through with programs. So we cannot remove her in my estimation, we cannot remove her from a stable situation to an unstable situation. And I wouldn t remove her at all based on the amount of time she has spent in this home.

J.H. also testified at trial. He stated that he was currently working for a temporary employment agency, although he could not remember the name of the company and had applied for permanent jobs. J.H. further testified that when he visited T.H., she was affectionate and comfortable with him. J.H. stated that in about a month he would be moving to a two-family house with his sisters. He was planning to live in the downstairs residence of the house with one of his sisters and her daughter.

Following trial, on June 26, 2012, the trial judge terminated J.H.'s paternal rights to T.H. and awarded guardianship to the Division. Judge Angela F. Borkowski issued a comprehensive written opinion and order terminating J.H.'s parental rights. It is from this order that J.H. appeals.

The trial judge concluded that the Division had established the four prongs of the test for termination of parental rights under N.J.S.A. 30:4C-15.1(a). Prong one was established because of J.H.'s continued substance abuse, multiple incarcerations, lack of stable and safe housing, and failure to provide J.H.'s daughter "with nurture, solicitude, or care for almost five years." As a result, the judge determined that J.H. "will remain unable to parent [T.H.] in the foreseeable future."

Prong two was established because the harm caused by the parental relationship would continue because J.H. "is unwilling or unable to overcome or remove the harm." Further, the judge determined to delay permanency will cause further harm since T.H. is entitled to stability and she is bonded with B.H.

Under the third prong, the judge found that the Division made reasonable efforts towards reunification, noting the "Division had provided psychological and bonding evaluations, offered counseling sessions, supervised parenting time, transportation, bus passes and referred [J.H.] for substance abuse evaluations and referred him to substance abuse treatment."

The judge also found that prong four was established because T.H. would experience psychological trauma if her relationship with B.H. was severed. In addition, relying on Dr. Gordon's opinion, the judge concluded that T.H. had established an extremely strong bond with B.H. and that J.H. maintains an insecure or no bond with his daughter. Therefore, the judge determined that terminating J.H.'s parental rights would not do more harm than good.

As a threshold matter, the scope of appellate review of an award of guardianship is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "The factual findings which undergird a judgment in such a case 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. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) and Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the [] court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses[,]" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007), which "can never be realized by a review of the cold record," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about the witnesses" who testify).

We also recognize the special expertise of the judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13.

However, where the focus of the dispute is

. . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.

[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).]

When reviewing a Family Part order terminating parental rights, we consider the following legal principles. "A parent's right to enjoy a relationship with his [or her] child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and state Constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.

"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, initially formulated by the Court in A.W., supra, 103 N.J. at 602-11, was codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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.

[N.J.S.A. 30:4C-15.1(a).]

These four requirements "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 considerations involved are "'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of each case." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (quoting K.H.O., supra, 161 N.J. at 348). With these principles in mind, we turn to the arguments advanced by J.H.

Challenging the evidence found by the trial judge to support satisfaction of the first two prongs of the best interests test, J.H. maintains that he never put T.H. at risk, proved he was willing to eliminate any perceived harm, and was willing and able to parent his daughter. We reject these arguments as meritless.

The record reflects the Division proved by clear and convincing evidence the first prong of the four-part test. The facts showed that T.H.'s "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a). The child suffered harm because, due to J.H.'s incarcerations and substance abuse, he was unable to provide a stable and safe home for his daughter. Thereafter, constructive harm to the child occurred as J.H.'s inability to parent his daughter required that she remain in foster placement with B.H., a circumstance existing since July 10, 2007. N.J.S.A.30:4C-15.1(a)(2). Moreover, J.H. failed to address the deficiencies in his parenting skills at the time of trial. Consequently, actual harm, as well as the risk of future harm, was established. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435-36 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); see also A.W., supra, 103 N.J. at 607.

The second prong requires the Division to show that the parent is unable or unwilling to eliminate the harm facing the child, and a delay in the child's permanent placement will cause further harm. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "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. Alternatively, the State may show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. "The question is whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011).

J.H. argues that, with appropriate support, any harm to T.H. can be eliminated. However, the evidence supports the judge's conclusion that the delay in permanent placement caused by J.H.'s inability to assume a parental role would harm T.H. The expert evaluations established that B.H. had strong bonds with T.H., and that separation from her would cause T.H. further harm. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 283-85 (2007) (holding where there was no evidence that the father's situation was improving or would improve in the future, and where the father had failed to create a stable home, the delay in permanent placement would add to the harm). Therefore, the record fully supports the judge's finding that the Division established the second prong of the statutory test.

Under the third prong of the best interests standard, the Division must demonstrate that is "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). The Court has stated:

The diligence of [the Division's] efforts . . . is not measured by their success. . . . These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case. Consistent efforts to maintain and support the parent-child bond are central to the court's determination.

[D.M.H., supra, 161 N.J. at 393.]

The trial judge delineated that the Division provided J.H. with psychological and bonding evaluations, offered counseling sessions, supervised parenting time, transportation, bus passes and referred him for substance abuse evaluations and referred him to substance abuse treatment. The judge noted that the efforts made by the Division were "difficult due to his frequent incarceration." The record fully supports the judge's findings.

The final prong, requiring the Division to prove "[t]ermination of parental rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1(a)(4), often poses the most difficult and delicate balance of presented facts. K.H.O., supra, 161 N.J. at 355. Under this prong, the question is "whether, after considering and balancing the two relationships, 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." Ibid. "[W]here it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4) . . . ." Id. at 363.

Here, crediting the expert's testimony, the trial judge concluded termination would not do more harm than good. We are satisfied that there is sufficient credible evidence in the record to support the judge's finding.

Children experience harm when parental contact is severed. F.M., supra, 375 N.J. Super.at 264. However, there is overwhelming evidence T.H. is securely bonded to B.H., and severing the bond would cause significant and long-standing psychological trauma. Dr. Gordon clearly opined that T.H. would likely experience psychological harm or trauma if her relationship with B.H. was severed. Moreover, B.H. demonstrated her nurturing parental ability as well as the capability to satisfactorily mitigate any possible harm following termination of J.H.'s parental rights.

A delay in T.H.'s permanent placement with a loving and capable caregiver, in favor of an uncertain hope J.H. could one day assume the care of his child, is unwarranted. Dr. Gordon's opinion that T.H. would not suffer trauma once her relationship with J.H. ended was based on B.H.'s ability to mitigate any harm. On the other hand, separation from B.H. would cause enduring harm.

Based upon our review, we are satisfied that there is no basis to interfere with the judgment terminating J.H.'s parental rights and awarding guardianship of the child to the Division for purposes of her adoption by B.H.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes 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.