NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Y.T.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01

A-2503-13T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,2

Plaintiff-Respondent,

v.

Y.T.R. and H.Q.,

Defendants-Appellants.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.M.Q.,

a minor.

___________________________________

October 23, 2014

Submitted September 29, 2014 Decided

Before Judges Simonelli, Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0113-13.

Joseph E. Krakora, Public Defender, attorney for appellant Y.T.R. (Adrienne Kalosieh, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant H.Q. (Mark E. Kleiman, Designated Counsel, on the briefs).

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

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

PER CURIAM

Defendants Y.T.R. (Mother) and H.Q. (Father), the biological parents of A.M.Q., challenge an order entered by the Family Part terminating their parental rights pursuant to N.J.S.A. 30:4C-15. Mother contends that the Division failed to prove two of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Father contends that the Division failed to prove all four of the prongs. We affirm.

I.

We incorporate the factual findings in Judge Stephen J. Bernstein's January 14, 2014 oral opinion, and highlight the following.

Mother's involvement with the Division is quite extensive.3 A.M.Q., born in January 2008, was removed from Mother's custody on September 18, 2011, after the Division received a report that Mother was "shooting up" heroin in front of the child. Upon further investigation it became clear Mother suffered from a severe heroin addiction. Mother reported that she had spent $1500 per month on illegal drugs, and that she had to sell her food stamps to pay an outstanding PSE&G bill. In the two years preceding the trial, the Division offered Mother a myriad of services to help her overcome her addiction, with the initial goal of reunification. Although Mother managed to stop taking illegal drugs for some months, she relapsed several times, and was expelled from numerous treatment programs due to poor attendance, positive urine tests, and acts of aggression against other residents. Mother's anger issues also led to her incarceration for ten days after violating a restraining order. Immediately upon release, Mother admitted to relapsing into heroin use. As the trial court found, Mother "sabotages" all efforts to end her drug dependence.

Mother and A.M.Q. have a strong, loving bond. A.M.Q. even expressed a desire to live with Mother. Even the Law Guardian advised against this, noting that although it is a "rare occasion when the law guardian will make an argument that does not fully support a client's first choice or wish," Mother "is not a safe, stable or viable parenting option for [A.M.Q.] now or in the foreseeable future." Moreover, the expert's testimony opined that, based on Mother's failed attempts at sobriety and her continued romantic relationship with a known heroin user, she was unlikely to overcome her addiction and create a stable life for herself, let alone for a dependent child.

Father, on the other hand, has no relationship with A.M.Q. and is essentially a stranger to her. He had been incarcerated for most of A.M.Q.'s life for various offenses, and was serving a sentence for distributing controlled dangerous substances (CDS) for most of this litigation. Father was released approximately five months before the trial, but made no attempt to visit A.M.Q., failed to return the Division's phone calls, and did not attend the guardianship trial.

II.

Appellate review of a family court's findings is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision is "supported by substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (internal quotation marks omitted). "We ordinarily defer to the factual findings of the trial court because it 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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (internal quotation marks omitted).

III.

The Division must prove by clear and convincing evidence that termination of parental rights is in the best interests of the child. F.M., supra, 211 N.J. at 447; seeN.J.S.A. 30:4C-15(c). The Division must show 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.

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

A.

Mother does not challenge the court's findings as to prong one. However, Father asserts the trial court failed to show how his incarceration or behavior "harmed" A.M.Q.

Father correctly asserts that incarceration, standing alone, is insufficient to prove parental unfitness or abandonment. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555 (2014); In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993). However, "'[i]ncarceration is . . . probative of whether the parent is incapable of properly caring for . . . or has abandoned the child.'" R.G., supra, 217 N.J. at 554-55 (quoting L.A.S., supra, 134 N.J. at 136). A court may consider a defendant's "'[p]erformance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effort, if any, he has made to remain in contact with his children since his incarceration.'" Id. at 555 (quoting L.A.S., supra, 134 N.J. at 143-44). Here, Father failed to perform as a parent before and after incarceration, could not be relied upon, and made no effort to make contact with A.M.Q. since his incarceration. A parent's continued inattentiveness, lack of concern, and "withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J.365, 379 (1999) (citing In re Guardianship of K.H.O., 161 N.J. 337, 352-54 (1999)).

B.

Both Mother and Father challenge the court's findings as to prong two. Mother argues the Division did not proffer enough evidence to demonstrate she cannot overcome her addiction. She claims there was a seven-year period when she was drug free, but she was incarcerated for most of that time, and she has relapsed into heroin use repeatedly since 2009. She asserts that her subsequent attempts at sobriety were "false starts," that she was once drug-free for several months, and that her January March 2013 urine tests were false positives. However, Mother concedes she relapsed and used heroin in July 2013, only six months before trial. Thus, Mother "has [not] cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is [not] able to continue a parental relationship without recurrent harm to the child." K.H.O, supra, 161 N.J. at 348. Moreover, the trial court credited the expert's testimony that Mother is unlikely to repeat past success at sobriety. An appellate court must "defer to the trial court's assessment of expert evaluations." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 221 (App. Div. 2013).

Father made no real effort to reunite with A.M.Q. throughout this litigation. Further, "'[o]nce a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered.'" N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 243 (App. Div. 2010) (quoting L.A.S., supra, 134 N.J. at 139). Thus the trial court did not err in finding the Division satisfied prong two.

C.

Mother does not challenge the trial court's finding regarding prong three. Father, however, argues the Division failed to make "reasonable efforts" to provide him with services. He faults the Division for failing to arrange visitation with A.M.Q. in prison, but he did not request it, and the expert testified that prison visits with an unknown father may have had a "deleterious impact" on A.M.Q. Following his release from prison, Father continuously thwarted the Division's reasonable efforts to provide him services, including attempts to arrange a bonding evaluation.

D.

Both defendants challenge the fourth prong of N.J.S.A. 30:4C-15.1(a). An important consideration under this prong is the child's need for permanency. F.M., supra, 211 N.J. at 453. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that [her] most deeply formed attachments will not be shattered." Ibid.

Since her removal from Mother, A.M.Q. has been living with a foster mother who has expressed a serious desire to adopt her. A.M.Q. is doing well with her foster mother, and according to expert testimony, the foster mother could "mitigate the reaction" A.M.Q. may have to losing her biological mother, but the reverse is doubtful. The trial court properly found "only the foster mother is able to offer any stability or permanency that [A.M.Q.] needs." Although Mother may have a close bond with A.M.Q., maintaining the status quo in the hope Mother will improve, thus depriving A.M.Q. of a chance at permanency and a stable life with her foster mother, will do her more harm than good.

Father notes that "final separation from a biological parent is a harm in itself." N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 439 (App. Div. 1991). He also asserts that adopted children experience greater "emotional stressors" as compared to their peers. However, A.M.Q. and Father do not have a parent-child relationship, and the expert witness opined that A.M.Q. would likely suffer significant adverse effects if she was removed from her current environment, and placed into an unknown situation with a stranger.

The trial judge properly found that the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Defendant's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 These are back-to-back appeals consolidated for the purpose of this opinion.

2 The complaint was filed by the Division of Youth and Family Services. In June 2012, it was renamed the Division of Child Protection and Permanency. L. 2012, c, 16, eff. June 29, 2012. We will refer to it as the Division.

3 Mother's parental rights were also terminated as to her eldest son and a guardianship complaint is pending as to her youngest son.