NEW JERSEY DEPARTMENT OF CHILD PROTECTION AND PERMANENCY v. B.A.-B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-2728-13T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

B.A.-B. and M.S.S.,

Defendants-Appellants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF

A.W.I.M.S.S., U.I.M.S.S.,

A.S.B.M.S. and S.H.A.-B.,

Minors.

___________________________________________________

November 17, 2014

Submitted November 6, 2014 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-119-13.

Joseph E. Krakora, Public Defender, attorney for appellant M.S.S. (Anthony J. Vecchio, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant B.A.-B. (Beryl Foster-Andres, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendants B.A.-B. (Barbara) and M.S.S. (Martin)1 appeal a judgment terminating their parental rights to four children.2 Barbara argues that the judge's findings, rendered after a five-day trial, were contrary to the weight of the evidence and the judgment should also be reversed because, she claims, "the children have suffered significant psychological harm in their placements" outside the home. In his appeal, Martin contends only that the judge "failed to properly consider[] alternatives to termination" of his parental rights, specifically by not ordering placement of the two youngest children with their paternal grandparents. We find no merit in these arguments and affirm.

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 . . .,' and '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.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); 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. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); 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 of Child Protection and Permanency 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.

After carefully canvassing the record in light of the arguments posed by defendants in this appeal, we conclude that Judge Craig R. Harris's findings are supported by credible evidence and entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998). We mention only some of the salient findings.

Judge Harris found Martin was incarcerated at the time of the referral and remained incarcerated on drug offenses for extended periods of time following the children's removal. Martin took no steps to curb his drug use and acknowledged he was in no position to care for the children. The judge found both parties responsible for the home's "deplorable condition[]," which persisted despite multiple case plans and the Division's providing of numerous resources. The judge also determined that Barbara had "unresolved mental health issues that interfere[d] with her ability to parent" and "pose[d] a serious obstacle to her obtaining needed help."

Despite the fact that the Division offered numerous services, the record demonstrates, as the judge found, that the parents were unable or unwilling to remedy the circumstances that caused the placement outside the home of the children, all of whom had special needs. The judge additionally determined that, following the children's removal, Barbara was inconsistent in visiting with the children; when she did see them she attempted to interfere with their placement by "telling the children to misbehave in their foster homes" and in "making false accusations of abuse."

These findings and others warranted entry of the judgment under review. We affirm substantially for the reasons set forth by Judge Harris in his comprehensive and thoughtful oral opinion of February 24, 2014.

Affirmed.

1The names we have assigned to defendants are fictitious.

2The children in question were born in 2004, 2006, 2010 and 2012. Barbara is the mother of all four; she is also the mother of two other older children, who are not involved in this litigation and are presently in the care of a maternal aunt in Texas. Martin is the natural father of the three youngest children in question. The identity of the oldest child's father was not determined. When an individual identified by Barbara was tested and proved not to be the child's father, the court relieved the Division of any further obligation to identify or locate the child's natural father. Martin considers himself the psychological parent of the oldest child and has so acted throughout the child's life.