NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1568-12T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.P.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF D.R.N.P.,

A minor.

____________________________________________________________

January 16, 2014

Submitted December 17, 2013

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-79-11.

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

JohnJ. Hoffman,Acting AttorneyGeneral, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant M.P. appeals a judgment terminating her parental rights to one child, D.R.N.P. (hereafter, David, a fictitious name), arguing the evidence was insufficient. We disagree and affirm, but we also recognize that defendant may have a colorable application pursuant to Rule 4:50-1, in light of the circumstances that changed shortly after judgment was entered, that may warrant the granting of relief from the judgment.

The Division of Youth and Family Services now known as the Division of Child Protection and Permanency (the Division) commenced this action against both defendant and the child's father, defendant J.N., who neither appeared nor defended. Originally, the action sought the termination of parental rights not only as to David, who was born in 2000, but also T.N., David's older brother, who was born in 1998; the Division later withdrew the complaint as it related to T.N. Following a four-day trial, which occurred intermittently between June and September 2012, the trial judge issued a written opinion and entered a judgment terminating both defendants' parental rights to David. The evidence abundantly demonstrated that David's mother had a long-standing and unresolved substance abuse problem, as well as mental health issues, that subjected David to an unstable life exposed to drugs, criminality and periods of homelessness.

J.N. has not appealed. The child's mother, defendant M.P. (defendant) appeals, arguing1:

I. THERE WAS INSUFFICIENT CREDIBLE EVIDENCE IN THE TRIAL RECORD THAT THE SAFETY, HEALTH, OR DEVELOPMENT OF [DAVID] HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY A PARENTAL RELATIONSHIP WITH [DEFENDANT].

II. THE DIVISION FAILED TO ESTABLISH THE REQUIRED ELEMENTS OF PRONG TWO OF THE "BEST INTERESTS" TEST UNDER N.J.S.A. 30:4C-15.1(a) BECAUSE THE TRIAL RECORD DID NOT CONTAIN CLEAR AND CONVINCING EVIDENCE THAT [DEFEN-DANT] COULD NOT PROVIDE A SAFE, STABLE HOME FOR [DAVID], OR THAT A DELAY OF PERMANENT PLACEMENT WOULD HARM [DAVID], OR THAT SEPARATING [DAVID] FROM HIS RESOURCE FAMILY WOULD CAUSE [DAVID] SERIOUS AND ENDURING EMOTIONAL OR PSYCHOLOGICAL HARM.

III. PRONG THREE OF THE N.J.S.A. 30:4C-15.1(a) WAS NOT ESTABLISHED BECAUSE THE DIVISION MADE SUPERFICIAL, NOT REASONABLE, EFFORTS TO IDENTIFY THE ISSUES [DEFENDANT] NEEDED TO ADDRESS TO ACHIEVE REUNIFICATION WITH [DAVID], AND TO SERIOUSLY EXPLORE RESOURCE RELATIVES TO PROVIDE CARE FOR [DAVID].

IV. [THE DIVISION] DID NOT PREVAIL ON PRONG FOUR OF THE N.J.S.A. 30:4C-15.1(a) TEST BECAUSE IT FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATING [DEFEN-DANT'S] PARENTAL RIGHTS TO [DAVID] WOULD NOT DO MORE HARM THAN GOOD.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following regarding these arguments as well as further direction concerning the circumstances that have changed since judgment was entered.

The applicable legal principles are well settled. Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

These constitutionally-based rights, however, are not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:

(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 . . .;

(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.

See also A.W., supra, 103 N.J. at 604-11.

Our standard of review in such matters is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Here, in a very thorough opinion, Judge Mary Gibbons Whipple applied correct legal principles in concluding the Division had presented clear and convincing evidence that all four prongs supported the termination of defendant's parental rights.

In examining the evidence relevant to the first statutory prong whether the child's safety, health or development has been or will continue to be endangered by the parental relationship the judge made findings that, by the age of twelve, David had "spent more than one-third of his life in resource placement" due to defendant's "substantial addiction and mental illness," explaining:

The Division presented a multitude of evidence that tended to show [David's] mental and emotional stability was tightly linked to his interactions with [defendant]. When [defendant] presented negatively to [David], [David] became depressed [because he] felt responsible for her emotional and physical wellbeing. Moreover, when [defen-dant] was not restrained from communicating with [David], there were multiple occasions when she was unavailable or unwilling to speak to him. [David] acknowledged feeling guilty when he was not communicating with his mother, and feeling sad when he was communicating with his mother. This erratic relationship counters the support and stability that was recommended for [David's] healthy upbringing. Moreover, [defendant] has exposed [David] to the vestiges of substantial drug abuse, homelessness, crim-inality, and instability. She failed to adequately address his care. Even when asked what she would do if her rights were not terminated she indicated she would leave him in the care of her sister.

In considering the second prong, which "relate[s] to and overlap[s]" with the first prong to create "a comprehensive standard that identifies the child's best interests," K.H.O., supra, 161 N.J. at 348, the judge noted that defendant had been "unable to complete a treatment program without leaving against clinical advice," that she had "tried repeatedly to maintain sobriety during her numerous hospitalizations," and despite "some periods of success" was "never able to sustain those successes for more than a few months." In short, the judge concluded on the basis of the overwhelming evidence that defendant presented a "lamentable record of unsuccessful attempts to maintain sobriety" and the Division sustained its heavy burden of showing defendant "unwilling or unable to eliminate the harm." N.J.S.A. 30:4C-15.1(a)(2).

The judge also provided lengthy findings regarding the considerable efforts of the Division to help defendant overcome the circumstances that led to the placement of the child outside the home. These findings are also entitled to our deference. We note, in particular, one finding Judge Gibbons Whipple made regarding the unusual absence of an expert's evaluation of the bond between David and his mother. The judge recognized the importance of bonding evaluations in such cases, see, e.g., N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), but relied on the recommendation of David's therapist that a bonding evaluation would have "set his progress back"; the therapist reported she was unable to imagine any potential benefit from a bonding evaluation that would outweigh its negative consequences. The judge also noted, however, that defendant was in fact "offered the opportunity to schedule a bonding evaluation with her son notwithstanding these concerns" and that defendant declined. We thus find no prejudice in the absence of a bonding evaluation here, particularly in light of the extended periods of time during which defendant had been absent from David's life and what the judge found to be the "serious concerns regarding [David's] emotional state."

As for the fourth prong, Judge Gibbons Whipple made the following pertinent findings:

While [David] had previously declared a desire to live with [defendant], additional statements by [David] indicate that this declaration was motivated by his perceived compulsion to be loyal to his mother and not "give up on her." Additionally, the conclusions of [the Division's expert] and [David's therapist] clearly show that interaction with [defendant] is a direct contributor to [David's] depression and anxiety. "A child cannot be held prisoner to the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement."

. . . .

[David] has been in his current placement for over two years. It is unquestionably the case that [David's] parents are unable and unavailable to parent him. His resource parents have provided him with a supportive and stable home and they are committed to adopting him. Termination of parental rights will serve [David] well by allowing him to remain in a loving and stable environment. The [c]ourt finds that it is against the child's best interests to prolong resolution of his status by indefinitely extending foster care placement.

[Quoting N.J. Div. of Youth & Family Servs. v. C.S., 376 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).]

The judge's findings on all four prongs more than amply supported the decision to terminate defendant's parental rights to David. We, thus, affirm the judgment under review.

We would be remiss, however, if we did not recognize despite our denial of a motion to supplement the record in this regard, the Division represented the supplemental facts in its brief on the merits that the foster parents changed their minds about adoption at some point after final judgment was rendered. Apparently, as the Division represents, David required back surgery and the foster parents David's aunt and uncle sought compensation for wages they would lose during David's period of recovery. When compensation was denied, the foster parents sought and obtained David's removal from their home, and he has since been placed with another family.

The judge's decision on the fourth prong reflects that the judge gave weight to the fact that the former foster parents were then committed to adoption and that termination of defendant's parental rights was a necessary step before adoption could occur. Now that circumstances have changed, defendant may have a viable contention that this change has weakened the Division's presentation on the fourth prong to the point where it can no longer be said that termination would not do more harm than good; if that is so, defendant would be entitled to relief from the judgment pursuant to Rule 4:50-1(e). Of course, in light of the limitations on the record on appeal, we are in no position to intimate a view as to such a motion's merits. Should defendant timely move for relief following today's judgment, we leave the matter, in the first instance, to the trial court.

In short, based on the record that unfolded at trial, we affirm the judgment under review. But our affirmance should not be interpreted as foreclosing relief from that judgment upon a proper application.

Affirmed.

1We have renumbered the points and omitted their subparts.