NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. F.F.

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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NOT FOR PUBLICATION WITHOUT THE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.

F.F.,

Defendant-Appellant.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF G.J.S.,

Minor.

___________________________

December 8, 2014

 

Submitted November 3, 2014 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0015-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the briefs).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant F.F., the biological father of G.J.S., born in September 2012, appeals from the February 19, 2014 judgment of guardianship, which terminated his parental rights to the child. The judgment also terminated the parental rights of the child's biological mother, J.S., who does not participate in this appeal. For the reasons that follow, we affirm.

The following facts are undisputed. Plaintiff New Jersey Division of Child Protection and Permanency (Division) became involved with G.J.S. after receiving a referral that he and his mother tested positive for benzodiazepine and opiates when he was born. G.J.S. suffered from withdrawal symptoms and remained hospitalized for approximately one month. Following the child's discharge from the hospital, the Division removed him from J.S.'s care and on November 14, 2012, placed him with his foster mother, who wants to adopt him.

Defendant became involved with the Division on November 8, 2012. At that time, he was enrolled in the drug court program.1 After a paternity test confirmed that defendant was G.J.S.'s biological father, the Division offered him weekly supervised visits and transportation to the visits. The Division also modified the visitation schedule to accommodate his drug treatment program. From November 8, 2012 forward, defendant attended only four visits, never called the Division to cancel the visits he did not attend, and never inquired about G.J.S.

Defendant last saw G.J.S. in August 2013, when the child had surgery to correct a medical issue. Defendant had minimal interactions with G.J.S. at the hospital and was focused on his cellphone while the foster mother responded to inquiries from the medical personnel. Defendant also failed to: attend several court hearings; attend meetings with the Division; respond to the Division's phone messages and letters; complete psychological and bonding evaluations; and obtain suitable, stable housing.

In addition, before the Division's plan for G.J.S. changed from reunification to adoption, defendant only provided his mother as an alternative placement option, but the Division rejected this placement. Thereafter, on August 6, 2013, nearly a year after G.J.S. became involved with the Division, defendant offered his brother as a placement option, but only on a temporary basis until defendant could provide for the child.

On August 29, 2013, the Division's expert, Alan J. Lee, Psy.D., conducted a bonding evaluation between G.J.S. and his foster mother. Dr. Lee opined that G.J.S. lived nearly his entire life with his foster mother and formed a significant and positive psychological attachment and bond with her. The doctor noted that because G.J.S. was only eleven months old at the time of the bonding evaluation, it was premature to conclude he would suffer severe and enduring psychological and emotional harm if their relationship ended. However, the doctor concluded that at age fifteen to twenty-two months, G.J.S. would likely have developed a stronger bond with his foster mother and would likely suffer severe and enduring psychological and emotional harm if their relationship ended.2 Dr. Lee emphasized the importance of permanency and stability for G.J.S.'s healthy development, and determined that, assuming the birth parents could not independently care for G.J.S. within the foreseeable future, the child should remain permanently with his foster mother.

Based on the above undisputed evidence, in a February 19, 2004 oral opinion, the trial judge concluded the Division established each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. On appeal, defendant challenge's the judge's findings on all four prongs of N.J.S.A. 30:4C-15.1(a). He argues there was no evidence he harmed G.J.S., was unable or unwilling to provide a safe and stable home for the child, or could not ameliorate any harm the child might suffer if removed from his foster mother. He also argues the Division failed to provide services or consider relative placements, and termination of his parental rights will do more harm than good. We disagree with all of defendant's arguments.

Our standard of review in parental termination cases is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). As our Supreme Court stated,

[o]ur task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We 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. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.

[N.J. Div. of Youth & Family Servs. v F.M., 211 N.J. 420, 448-49 (citations and internal quotation marks and omitted).]

"However, 'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded.'" R.G., supra, 217 N.J. at 552 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). "'A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

"The focus of a termination-of-parental-rights hearing is the best interests of the child." F.M., supra, 211 N.J. at 447. To justify termination of parental rights, the Division must establish by clear and convincing evidence 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 [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.

[Id. at 448 (quoting N.J.S.A. 30:4C-15.1(a)).]

These "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

The first prong of the best interests test requires proof that "the alleged harm shown threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). The test is whether the child's safety, health, or development will be endangered in the future and whether the parent is able or will be able to eliminate the harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Thus, this prong is satisfied by proof that the parent-child relationship caused the child harm, as well as the potential that the parent's actions or inactions could cause harm. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

Evidence that a parent lacks a permanent, safe and stable home can be sufficient to show that the child is endangered by the parent-child relationship. D.M.H., supra, 161 N.J. at 383. Additionally, the failure of a parent to provide the child "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379. Moreover, a parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child]" compounds the harm. Id. at 380. That inaction "constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.

"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). "[P]arents must remedy or show they are able to remedy harm to the child in advance of reunification within the time limits established in 42 [U.S.C.A.] 671, the federal Safe Families Act of 1977[.]" R.G., supra, 217 N.J. at 557.

The second prong may be satisfied

by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.

[K.H.O., supra, 161 N.J. at 353.]

Prong two may also be satisfied if "'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" R.G., supra, 217 N.J. at 556 (quoting K.H.O., supra, 161 N.J. at 363). This is especially true when the harm is "'the prolonged inattention to a child's needs, which encourages the development of a stronger, bonding relationship to foster parents,' which if severed could cause the child profound harm." K.H.O., supra, 161 N.J. at 352. Moreover, "[a] delay caused by [the parent]'s failure to assume a responsible parental role in securing permanent placement" for the child is a harm in itself. Id. at 354.

The third prong of N.J.S.A. 30:4C-15.1(a) requires the Division to make reasonable efforts to provide services to help the parents correct the circumstances that led to the child's placement outside the home. R.G., supra, 217 N.J. at 557 (citing N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third prong

is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.

[F.M., supra, 211 N.J. at 452 (citations and internal quotation marks omitted).]

As part of the inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 434-35. "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435.

Although the Division's obligation under the third prong does not allow "willful blindness and inexplicable delay in assessing and approving or disapproving a relative known to the Division[,]" a parent cannot "expect the Division to locate a relative with no information or . . . wait until the eve of the guardianship trial to identify a relative who is willing to adopt." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). This obligation is not meant "to provide a last minute defense to termination for a parent who identifies a relative, previously unknown and not reasonably known to the Division, after the guardianship complaint has been filed." Id. at 581.

The fourth prong requires proof that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" R.G., supra, 217 N.J. at 559 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The focus is on "'whether a child's interest will best be served by completely terminating the child's relationship with [the] parent.'" Ibid. (quoting E.P., supra, 196 N.J. at 108). The court must decide "whether . . . the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355.

Harm to the child resulting from terminating parental rights is inevitable, therefore the fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's examination is one of comparative harm, requiring the court to consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Therefore, to satisfy the fourth prong, the Division "should offer 'testimony of a well[-]qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship' with the natural parents and the foster parents." R.G., supra, 217 N.J. at 559 (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "Under this prong, an important consideration is [a] child's need for permanency. Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453 (citations and internal quotation marks omitted).

Here, there is more than ample evidence in the record to support the trial judge's conclusion that the Division established each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. As for the first prong, the evidence shows that G.J.S. was in foster care for over a year when the trial began. During that time, defendant never obtained a permanent, safe and stable home, nor did he provide G.J.S. with any solicitude, nurture, care, or perform any parenting functions or provide support for the child. Defendant only visited G.J.S. four times and left the parental functions to the foster mother, with whom G.J.S. has formed a significant attachment and bond, which, if terminated, would likely cause him to suffer severe and enduring psychological and emotional harm.

As for the third prong, we are satisfied that the Division made reasonable efforts to provide services to defendant. Defendant did not visit G.J.S., failed to attend meetings with the Division to discuss a plan for the child, and failed to attend psychological and bonding evaluations, all of which could have facilitated reunification. The Division also evaluated, and properly rejected, the relative placement defendant offered prior to the filing of the guardianship complaint. The Division cannot be faulted for defendant's belated offer of his brother as a temporary relative placement option.

The Division also satisfied the fourth prong. G.J.S. has lived nearly his entire life with his foster mother and she is the only parental figure he knows. Defendant, by his own doing, is a stranger to the child. There is no evidence whatsoever that the child will suffer any harm from the termination of defendant's parental rights.

Affirmed.

1 On July 27, 2011, defendant was convicted of third-degree burglary. The court sentenced him to a four-year probationary term with conditions, including obtaining a substance abuse evaluation and treatment. On September 10, 2012, defendant violated the terms of his probation. On September 13, 2012, the court vacated the prior sentence and re-sentenced defendant to a five-year probationary term conditioned on completion of the drug court program.

2 At the time of trial in December 2013, G.J.S. was sixteen months old.