NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant,

and

A.D.,

Defendant.

IN THE MATTER OF THE

GUARDIANSHIP OF C.J.P.,

a Minor.

October 28, 2014

Submitted October 1, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-47-13.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephanie S. Anatale, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.J.P. (Caitlin McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant J.P. (Jane)1 appeals the Family Part's December 23, 2013 order terminating her parental rights pursuant to N.J.S.A. 30:4C-15.1(a). The child, C.J.P. (Charles), was born to Jane and A.D. (Andrew)2 in March 2011. Jane now contends that plaintiff New Jersey Division of Child Protection and Permanency (Division) failed to meet the four-prong test found in the statute by clear and convincing evidence. We affirm, essentially for the reasons stated by Judge Robert Figarotta in his thorough and cogent oral decision.

We summarize the relevant circumstances gleaned from the record. Jane was only twenty-four at the time of trial. The Division has been involved with her since she was a child because of a number of traumatic events in her life requiring the agency's intervention. Jane's first baby, who died at birth, was born when Jane was thirteen. Her second, born when she was fifteen, was placed in the kinship legal guardianship of paternal relatives. Her third child, born when she was approximately seventeen, suffocated while sleeping when Jane rolled over on him. The following year, she gave birth to a fourth child, whom she surrendered for adoption. During that pregnancy, she tested positive multiple times for marijuana. She was homeless at the time of the child's birth.

In 2008, when Jane turned nineteen, she tested positive for drugs while pregnant with her fifth child. Though Jane reported being physically abused by the child's father, and though the record discloses no reasons for its decision, when the Division was finally able to locate Jane and the baby after her discharge from the hospital, it placed the baby with his father.

In 2009, Jane had twins who were diagnosed with sickle cell anemia two months after birth. At that time, the Division referred Jane to parenting classes and substance abuse programs, but she never enrolled. Following the abuse-and-neglect litigation regarding the twins, both Jane and the father were granted legal custody, but only the father received residential custody. After the father's incarceration, however, the twins lived with a paternal aunt. Shortly thereafter, the Division received a referral regarding the medical care the twins should have been receiving. When the Division followed up, it learned for the first time that Jane had given birth to Charles. She was again scheduled for a substance abuse evaluation and a psychological assessment. Jane submitted a urine sample which tested positive for marijuana and failed to appear for her substance abuse evaluations. This was the beginning of many appointments the Division made for Jane, while proceedings regarding Charles were pending, for substance abuse evaluations and family-related services, including family preservation, which she ignored.

In June 2011, Charles was admitted to the hospital for congestion and vomiting. Despite having been advised that he needed follow-up treatment with his pediatrician after the discharge, Jane did nothing. In fact, at one of the subsequent home visits, a Division worker observed that Jane had not assembled the crib that had been purchased by the agency for her child.

Because Jane continued to avoid participation in services, on August 10, 2011, Charles was placed with a resource family. He has lived there continuously since, and the resource parents wish to adopt him. The Division's initial plan was reunification, contingent upon psychiatric and substance abuse evaluation, treatment, and psychotherapy. Jane did not meet any of these goals. In fact, she missed many of her scheduled weekly supervised visits with Charles. Among the reasons Jane gave at trial for her failure to regularly attend visits was that she broke both her legs in December 2011, was incarcerated from February to March 2012, and feared being arrested on outstanding warrants. There were some missed visits for which she had no explanation. While at the visits, she behaved appropriately, although Charles, according to the workers who observed them, was not particularly engaged with her.

While the proceedings were pending, Jane continued to struggle with homelessness. She was evicted from at least one homeless shelter for aggressive behavior and failure to follow rules. Jane was not employed during this timeframe.

In July 2012, Jane was informed of the likelihood that the Division's plan would change due to her failure to complete services. In the fall of 2012, the Division's plan was amended to termination of parental rights.

Meanwhile, in late 2012, Jane became pregnant again with her ninth child. Jane claimed she was assaulted by the man who was the father, and obtained a temporary restraining order under the Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, which she later dismissed.

Jane's psychological evaluation, completed on August 22, 2013, by Allen Lee, Psy.D., diagnosed her as having bipolar and unspecified personality disorders, "with antisocial, borderline, and paranoid traits." The report suggested that she lacked the capacity to parent and should not be the sole caretaker for her children. Lee opined that Jane could care for Charles only if she was supervised, and engaged with a host of necessary services, including a complete substance abuse evaluation, treatment monitored by frequent drug screens, anger management, and individual counseling. Lee also recommended a psychiatric evaluation.3

Barry Katz, Ph.D., conducted the bonding evaluations. He testified at trial that Jane was unable to parent at that time or in the foreseeable future. Dr. Katz also concluded that although Charles recognized Jane, he was unquestionably bonded solely to his foster parents, with whom he enjoyed a healthy, happy, and loving relationship. Charles refers to his foster parents as "mommy" and "daddy."

Judge Figarotta carefully reviewed the evidence, which included the Division's numerous referrals and Jane's multiple failures to complete services. He found the Division met all of the legal requirements for a judgment of guardianship by clear and convincing evidence, tracking the statutory requirements of N.J.S.A. 30:4C-15.1(a). He observed that when Jane testified about the bonding evaluation, she perceived the relationship between her and the child as close, contravening the expert's observations. The judge also noted that Dr. Katz concluded that termination of parental rights would do more good than harm, and that separating Charles from his resource family would cause him severe and enduring harm which Jane could not ameliorate.

On appeal, Jane raises the following issues

POINT I

THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT [CHARLES]'S SAFETY, HEALTH, OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH [JANE] BECAUSE [THE DIVISION] HAD ZERO CONCERNS ABOUT [JANE]'S PARENTING OF [CHARLES] UNTIL AN UNRELATED REFERRAL GAVE THEM AN EXCUSE TO INTERVENE IN THAT PARENT-CHILD RELATIONSHIP.

POINT II

THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT [JANE] IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING [CHARLES] OR IS UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR [CHARLES] BECAUSE [JANE] MADE MULTIPLE EFFORTS TO OBTAIN TREATMENT FOR THE PROBLEMS THAT WERE FOUND TO HAVE LED TO THE HARM, INCLUDING SUBSTANCE ABUSE TREATMENT AND DOMESTIC VIOLENCE COUNSELING, EVEN WITHOUT ANY ASSISTANCE FROM [THE DIVISION].

POINT III

THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT [THE DIVISION] MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP [JANE] CORRECT THE CIRCUMSTANCES WHICH LED TO [CHARLES]'S PLACEMENT OUTSIDE OF THE HOME BECAUSE [THE DIVISION] FAILED TO REFER [JANE] AND [CHARLES] TO A MOMMY AND ME PROGRAM, FAILED TO REFER [JANE] TO DOMESTIC VIOLENCE COUNSELING, AND EVENTUALLY REFUSED TO MAKE ANY ADDITIONAL REFERRALS.

POINT IV

THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT TERMINATION OF [JANE]'S PARENTAL RIGHTS WOULD NOT CAUSE MORE HARM THAN GOOD BECAUSE [THE DIVISION] FAILED TO CONSIDER THE FACT THAT [CHARLES] WOULD HAVE MORE THAN LIKELY ADJUSTED TO BEING RETURNED TO HIS MOTHER AND SEPARATED FROM THE FOSTER PARENTS BECAUSE HE WAS ONLY TWO YEARS OLD AND THAT [JANE] COULD HAVE AMELIORATED ANY HARM BY ALLOWING [CHARLES] TO HAVE VISITS WITH THE FOSTER PARENTS.

As we have said, we affirm based on Judge Figarotta's decision. We add the following brief comments. Our review of a trial court's order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). The trial court's decision shall not be disturbed "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). Significant deference is afforded to the trial court's factfinding and credibility determinations "because of the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citations 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)).

Although "[a] parent's right to enjoy a relationship with his or her child is constitutionally protected," this right is "not absolute." In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). The State, under its parens patriae power, may terminate a parent's rights if necessary to protect the child's welfare. R.G., supra, 217 N.J. at 553-54 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). In an action to terminate parental rights, New Jersey follows the best-interests-of-the-child standard, a four-prong test codified in N.J.S.A. 30:4C-15.1(a). The four prongs of the statutory test "are not discrete and separate," but rather "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.

Clearly, the Division does not have to wait until a child is harmed by a parent's conduct to establish the first prong of the statutory test. It must only show harm "that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. As the trial judge noted, Jane's continuing history of drug use and inability to engage in drug treatment, much less to complete it, creates a continuing risk of harm. The risk is compounded by Jane's mental health issues, for which she did not complete treatment; lack of stable housing; involvement with abusive partners; and chronic unemployment. The Division readily met its burden under the first prong of the test.

Under the second prong, the Division must establish that the parent is "unwilling or unable to" either "eliminate the harm facing the child" or "provide a safe and stable home for the child and [that] the delay of [such] permanent placement will add to the harm." N.J.S.A. 30:4C15.1(a)(2). The same proofs as the trial judge discussed with relation to prong one are relevant to this prong. Jane's ongoing positive drug screens, inability to engage in treatment, failure to secure a home that was safe and stable, and relationships with abusers all establish that she was either unable or unwilling to eliminate the harm these chronic difficulties would inflict upon Charles. Jane tested positive for marijuana shortly after Charles was born in May 2011 and continued to test positive as recently as August 2013. At the time of the trial, she was not in any type of treatment program. That fact alone is troubling, especially in the face of multiple referrals and the knowledge of the steps necessary for Charles to be returned to her care.

The Division also readily met the third prong of the test. On many occasions, it referred Jane to multiple programs, such as parenting classes, drug treatment programs, and therapy, none of which she attended.

Jane's contention on appeal, that the Division's failure to place her in a "Mommy and Me" program was fatal, lacks merit. To have placed her and Charles in such a program after he had been so long in foster placement, while Jane made no discernable effort to gain a foothold in a stable life, would have inflicted harm upon the child with little prospect of return. Jane first asked for the "Mommy and Me" program in late January 2013, after Charles had been in placement seventeen months.

The Division workers testified at length as to the extensive efforts they made to engage Jane in treatment, upon which testimony the court properly relied. This included services the Division attempted to put in place before Charles was even born.

Under the fourth prong, the Division must show that termination of parental rights will not do more harm than good. The question is "not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. "[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 fourth prong. K.H.O., supra, 161 N.J. at 363.

The argument on appeal that visitation with his foster parents would have ameliorated any harm that would come to Charles from separating him from the only family he has ever known is so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Furthermore, Jane would have no ability to ameliorate the harm that would come to Charles if he was removed from the resource family home.

As the trial judge correctly concluded, Charles's best interests would be served by terminating Jane's parental rights. Both psychologists who evaluated Jane found her incapable of being the sole caretaker of a child now or in the future. Jane continues to be at risk for significant instability in all areas of her life. Instead of addressing those issues, she continues to avoid treatment, abuses drugs, and struggles to even care for herself. Hence we agree with the trial judge that termination of parental rights in this case would do more good than harm.

Affirmed.

1 For the sake of anonymity, we employ pseudonyms throughout.

2 Andrew surrendered his parental rights on December 12, 2013.

3 Jane disclosed that over her life she had been prescribed the following psychiatric drugs: Thorazine, Risperdal, Ritalin, Trazodone, and Depakote.