NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.H.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
IN THE MATTER OF THE GUARDIANSHIP
December 8, 2014
Submitted October 28, 2014 Decided
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-17-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Rhonda J. Panken, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia O'Dowd, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).
Defendant T.H. appeals from a final judgment terminating his parental rights to his two-year-old son, A.G., born April 28, 2012. The child's mother1 reported A.G.'s birth to the Division of Child Protection and Permanency when the baby was ten weeks old but refused to disclose his whereabouts. Concerned because the mother was a confirmed drug user who had proved unable to care for her other three children and was then homeless, the Division mounted a search for the child. Defendant brought the baby to the Division after the mother left the baby in his care for the weekend. When defendant advised that he remained living with his family and was without available space for A.G., the Division executed an emergency removal giving rise to this action.
Defendant, then twenty-four years old, and A.G.'s mother, then twenty-one, were known to the Division. They had two months before made an identified surrender of custody of their eighteen-month-old daughter, A.G.'s sister, to defendant's cousin. In October 2010, when their daughter was two months old, defendant was arrested and charged with assaulting the baby's mother. The Division shortly thereafter effected an emergency removal. Although the Division arranged services, neither parent was compliant with drug treatment or counseling. The court entered a judgment of guardianship accepting their surrender in the spring of 2012.
Defendant's circumstances had not changed at the time of A.G.'s birth. He was still living with his father, an active heroin user, and his brother, who also used drugs regularly. He did not have a car or a driver's license and was unable to get or maintain steady employment.
While defendant maintained contact with A.G. through supervised visits, he was inconsistent, not attending when the location did not suit him. Although defendant was a regular user of marijuana and reported that he often drank to excess, he refused drug treatment until a few months before trial. He adopted the same approach to counseling, although acknowledging that he suffered from depression and had difficulty maintaining employment.
Defendant missed the first day of trial because he mixed up the dates. He testified that he had no prospects for employment, although he had searched for work, and continued to live with his father, although aware that it was not a suitable place for A.G. He thought the Division could have done more to assist him with finding a job and another place to live. When asked why he failed to take advantage of the drug treatment and counseling the Division had arranged, defendant explained that "[a]t the time I really didn't think I needed it, I was just I guess I was in a different state . . . than I am now."
The Division's psychological expert, Dr. Miller, testified to the two evaluations he conducted of defendant, one not long after A.G.'s removal and the other just before trial. At the time of his first evaluation, Dr. Miller concluded that defendant was not able to provide for his son's needs. He had no understanding of the baby's developmental needs, and could not provide him financial resources or safe housing. The expert testified that he "tried to map out a pathway" for defendant to achieve reunification, recommending that he demonstrate sobriety for eight months so that he could address his underlying emotional problems, be consistent in his visitation, and involve himself in individual therapy to help him identify and achieve goals such as consistent employment and independent housing.
Dr. Miller testified that the focus of his second evaluation was to assess whether defendant had been able to make changes in his life, whether he had been compliant with services, and to measure any changes in his functioning. The doctor learned that defendant had only just stopped using marijuana, still lived with his father and brother, had not secured a job or attended counseling and remained inconsistent in his visits. In sum, Dr. Miller found no change. Defendant remained unable to "provide basic or minimal parenting for safety, for consistent resources or emotional nurturance of his son." Dr. Miller also testified that A.G. was not bonded to defendant but was securely attached to his resource parent, who loved him and wanted to adopt him. He opined that removing A.G. from his resource parent, who had cared for him since he was three months old, "would damage his sense of basic trust" and "his understanding of the world" and lead to "a lifelong wound."
The judge concluded that the "unfortunate fact is that [defendant] does not have a place for the child, doesn't have the ability to support the child, has not completed services, and is unable to safely parent the child." Acknowledging defendant's recent efforts to obtain sobriety and attend counseling, the judge stated they were insufficient to allow him to conclude that defendant "has the capacity or the will to remediate those issues within the reasonable future, so as to avoid harm to the child by extended placement." After making credibility findings and applying the statutory factors, N.J.S.A. 30:4C-15.1(a), to the facts adduced at trial in a thorough opinion delivered from the bench, the trial judge entered a judgment terminating defendant's parental rights. The judge noted that A.G.'s resource parent not only has custody of A.G.'s half-sister, but also maintains a close relationship with defendant's cousin, who has custody of A.G.'s sister, and that all of these children see one another regularly, allowing for the possibility that defendant may likewise maintain contact with his children.
Defendant appeals, presenting arguments contained in a single point with multiple subparts
THE TERMINATION OF T.H.'S PARENTAL RIGHTS TO [A.G.] SHOULD BE REVERSED BECAUSE DCPP DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION IS NECESSARY TO PROTECT HIS BEST INTERESTS.
A. DCPP FAILED TO PROVE PRONG 1 BY CLEAR AND CONVINCING EVIDENCE BECAUSE IT DID NOT SHOW HARM TO [A.G.].
B. DCPP FAILED TO PROVE PRONG 2 BY CLEAR AND CONVINCING EVIDENCE BECAUSE IT DID NOT SHOW [T.H.] WAS UNABLE OR UNWILLING TO ENACT CHANGE.
C. DCPP FAILED TO PROVE PRONG 3 BY CLEAR AND CONVINCING EVIDENCE BECAUSE IT FAILED TO PROVIDE TAILORED SERVICES AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION.
We find no merit in these arguments and affirm substantially for the reasons set forth in Judge Sabbath's January 16, 2014 bench opinion.
1 The child's mother surrendered her rights to A.G.'s resource parent, and she is not part of this appeal.