NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.L.

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NOT FOR PUBLICATION WITHOUT THE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.

E.L.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF H.L.,

a minor.

February 14, 2014

Submitted December 17, 2013 Decided

Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-27-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Anastasia P. Winslow, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; Meredith Pindar, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.L. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant E.L., referred to as Elaine for anonymity and ease of reference, appeals the Family Part's March 22, 2013 written decision and entry of judgment terminating her parental rights to her son, H.L., born March 2011.

Elaine contends that the trial court erred in its assessment of the third statutory factor, that plaintiff New Jersey Division of Child Protection and Permanency (Division) must make "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." See N.J.S.A. 30:4C-15.1(a)(3). Elaine also asserts that her assigned attorney was ineffective, in violation of her constitutional right to counsel. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007). We disagree with both points, and therefore affirm.

H.L., whom we will call Harold, experienced drug withdrawal at birth. As a result, he was hospitalized the first thirty days of his life.

Elaine's brief essentially concedes that the trial judge did not err as to prongs one, two, and four of the statute. See N.J.S.A. 30:4C-15.1(a)(1), (2), and (4). Some factual context is nonetheless necessary. Elaine was nineteen when Harold was born. She was addicted to Percocet. In childhood, Elaine was herself removed from the care of her mother L.W. because of L.W.'s crack cocaine addiction and, as a result, was raised by her maternal grandparents. At the time of Harold's birth, however, Elaine was residing with her mother.

Elaine never fully engaged in any of the services offered to her, including in- or out-patient drug treatment. At various times while the litigation was pending, she tested positive for drugs. She was moderately cooperative with the supervised visitation the Division arranged, but at times failed to appear, without notice, or left early. Elaine did not have stable housing. She has never held a job. Elaine attended a special services school, but dropped out before graduation.

When initially evaluated by Alan J. Lee, Psy.D., Elaine acknowledged an addiction to prescription drugs, and a troubled adolescence, which included being a runaway. As a result of his interview and testing, Lee found Elaine to have "notably impaired reality testing, impaired reality sense, and some emerging thought disorder. This includes some rather bizarre and combinative thinking where she merges incongruent ideas and percepts [sic] into one. . . . [I]t would appear prudent to monitor her for possible emerging signs of schizophrenia-spectrum disorder."

From the inception of this matter, Elaine has expressed a desire to have L.W. take custody of Harold. When the child was first removed, and placed with a resource family, L.W. was not considered for placement because of her extensive prior history with the Division, including the earlier removal of Elaine and L.W.'s two other younger children. All three children were, at some point in their lives, placed with L.W.'s mother, Elaine's maternal grandmother. At some time not clear from the record, L.W.'s daughter was returned; her son was returned in April 2011, while Elaine was living in her home.

In July 2011, Harold was moved to the home of the parents of the man Elaine had identified as the child's father. Later DNA testing proved this not to be the case; nonetheless, the parents expressed a desire to keep the child, who has lived with them since July 2011. They wish to adopt Harold. The child suffers from chronic asthma, some skin conditions, and behavioral problems. The identity of Harold's father is unknown.

On October 26, 2011, the Division sent L.W. a rule-out letter, based on her prior Division history and the fact that Elaine lived with her. The Division did not consider it safe to place the child in a home shared with Elaine.

On April 24, 2012, L.W. obtained a copy of the rule out letter from the Division's office, as she claimed she had not received it. Thirty days later she appealed the decision. The matter was remanded for further consideration of her request because of missing documentation.

After remand, the subsequent investigation disclosed that L.W.'s husband, whom she married in 2011, had a recent drug conviction. L.W. acknowledged knowing about his drug problem prior to the marriage. As a result, the Division again rejected her as a possible placement and, on August 1, 2012, a second rule-out letter was sent. L.W. did not appeal it, but told the Division worker she was considering leaving her husband so that she could obtain custody of Harold.

During an October 5, 2012 case management conference, Elaine claimed that L.W.'s husband no longer lived with her mother and that L.W. was therefore available to adopt. Accordingly, the trial judge ordered the Division to reassess L.W., and the trial date was postponed to December. The Division's reassessment included psychological and bonding evaluations. Elaine's counsel subsequently indicated that he intended to file a motion to transfer custody of Harold to L.W., which would be filed upon receipt of defense psychological and bonding evaluations. The matter was later adjourned again to January 2013.

The results of L.W.'s psychological and bonding evaluations, conducted by Division experts, indicated that although Harold had an emotional tie to L.W., it was a connection similar to one he might have with a teacher or a babysitter with whom he was acquainted and friendly. During the individual evaluation by Jamie Gordon-Karp, Psy.D., completed on February 13, 2013, L.W. reported having been drug-free since July 16, 2008. She acknowledged talking to Elaine every day and attempting to assist her. L.W. also acknowledged the confrontation with Elaine, the details of which were not disclosed, which resulted in a December 2010 domestic violence restraining order against Elaine. At the evaluation, L.W. stated that her contacts with Elaine were limited, denied that Elaine lived with her at that time, and stressed that Harold should be placed with her because she was the grandmother.

Earlier bonding evaluations established that Harold had a strong psychological bond with his current resource family. When asked how she would ameliorate the disruption that Harold might experience if placed with her, L.W. minimized the effect the potential loss would have on the child. She also stated that she did not feel comfortable with a kinship legal guardianship arrangement, but rather wanted to adopt Harold outright. L.W. acknowledged that the child has likely bonded more closely to his foster family because he had been living with them, but was certain that because she loved the child as well that he would be fine if placed in her care.

Ultimately, Gordon-Karp opined that L.W. has personal issues that made her an inappropriate placement for Harold, including the "tumultuous relationship" between L.W. and Elaine. [Da436] The relationship means that L.W. has difficulty in imposing limits on Elaine's ability to have "a negative influence on [Harold] and his life." Taking all the evaluations and information into account, Gordon-Karp concluded that removing Harold from his current placement would result in "severe and enduring harm."

The child requires a high level of care, and given L.W.'s relationship with Elaine as well as her current marriage, it was not certain that she could provide the attention he requires. Harold requires predictability and structure, and, of the available choices, Gordon-Karp concluded that only the current resource family was able to meet his needs. She also opined that Harold "would not suffer severe and enduring harm should termination take place."

The Division notified L.W. that they would not place Harold with her based on her failure to appeal the August 1, 2012 rule-out letter and her husband's drug conviction. This second rule-out letter also indicated the outcome of the psychological evaluation.

When the matter was returned to court in February, counsel again stated that he would file a motion to transfer custody from the current resource family to L.W. The court responded that it would consider the custody matter simultaneously with the termination of Elaine's parental rights. At the trial, Gordon-Karp testified consistent with her written reports while L.W. testified as to her wish to care for Harold.

The trial court found that the Division had met the statutory test by clear and convincing evidence. It also addressed the motion to transfer custody, applying N.J.S.A. 9:2-4(c) as the relevant test. The court noted the difficulties of placement with L.W., based on the factors we have recited. As a result, the Division's application for guardianship was granted, and the motion to transfer custody to L.W. was denied.

On appeal, Elaine raises the following points:

POINT ONE

THE TRIAL COURT ERRED IN TERMINATING E.L.'S PARENTAL RIGHTS BECAUSE THE DIVISION VIOLATED ITS STATUTORY COMMAND TO ENGAGE IN REASONABLE EFFORTS TO REINFORCE THE FAMILY STRUCTURE.

POINT TWO

THE TRIAL COURT'S ANALYSIS UNDER N.J.S.A. 9:2-4(C) WAS FUNDAMENTALLY FLAWED AS IT WAS ONE-SIDED AND EFFECTIVELY APPLIED A PRESUMPTION IN FAVOR OF FOSTER CAREGIVERS.

POINT THREE

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS DEFENSE COUNSEL'S DUTY OF LOYALTY WAS COMPROMISED RESULTING IN AN INTERNALLY INCONSISTENT TRIAL STRATEGY.

I

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) (second omission in original) (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 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. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

II

In addition to the broad assertion that the Division was obliged to transfer Harold to L.W.'s care and allow her to assume custody, attain kinship legal guardianship, or adopt, because of the familial relationship, Elaine argues that the judge incorrectly applied the test for an award of custody as he rendered his decision in the absence of information regarding the resource family. We conclude that the judge correctly determined that no alternative to termination, i.e., placement with L.W., was proper. See N.J.S.A. 30:4C-15.1(a)(3). In these circumstances, the determination suffices.

The trial judge's decision was in fact unremarkable. L.W.'s application was arguably Elaine's only means of avoiding the inevitable consequence of her inability to remain drug-free, secure safe and stable housing, and employment. When L.W. was ruled out on a second occasion, she did not file an appeal even though she was familiar with how to do so, having filed an appeal of the first rule-out letter. Such an appeal was procedurally the means by which L.W. could challenge the Division's decision within the context of the termination decision.

The argument that the court erred by not requiring the production of evidence regarding the pre-adoptive family was not made below. The court had no opportunity to address the question. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Aside from that, however, in the final analysis, L.W. proved herself to be an inappropriate placement.

The child was not bonded to L.W. She had recently received custody of both her children after their removal by DYFS. In 2011, L.W. married an individual with a recent drug conviction, even though drugs had already devastated her life, resulting in her loss of custody of all three of her children. Although she has, to her credit, been able to control her drug problem, obtained the return of her children, and is steadily employed, the real outlines of her relationship with Elaine and with her husband are unclear.

During her testimony, L.W. was adamant that she would closely monitor Elaine's contacts with the child. But she has daily contact with her, at least by phone. When Elaine needs her, L.W. provides for her, which some might view as also to her credit, such as during the time surrounding Harold's birth, when she offered her a home. She did so knowing Elaine was abusing drugs, and knowing the potential impact this could have on her own situation, including the recent return of her other two children.

The outlines of L.W.'s relationship with her husband are also unclear. He continued to receive mail at her home. She married him only in 2011. The record supports the judge's doubts regarding L.W.'s statement that she intends to divorce her husband in order to obtain custody of Harold.

This is a special needs child who suffers from a life-threatening condition, asthma. The condition requires scrupulous monitoring of his physical status as well as his physical surroundings. We therefore agree with the trial judge's determination that the third prong was met by the Division by clear and convincing evidence. Placement with L.W. was simply not an alternative to termination of parental rights.

III

With regard to Elaine's contention that she received ineffective assistance of counsel, we apply the two-part test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). She must establish that counsel's performance was objectively deficient and that it prejudiced the outcome. Ibid.

In support of Elaine's position that the representation was not competent, counsel on appeal avers that trial counsel was hampered by advancing a mutually exclusive position, i.e. L.W.'s interests in gaining custody while attempting to protect Elaine's. We do not agree.

Elaine never completed any services, generally did not even engage with them, inconsistently visited with her child, and had no meaningful bond with him. Elaine's own conduct meant that, even if L.W.'s custody claim was not pursued by her attorney, the outcome would have been the same. In other words, assuming for the sake of argument that there was a conflict between the positions, advancing Elaine's mother's position did not prejudice the outcome.

Furthermore, it was at Elaine's behest that L.W.'s application was even filed. From the beginning, it was Elaine's position that she wanted her child to be cared for by her mother. She likely understood that the only chance she had to maintain her ties to Harold was if L.W. gained custody of him. The court prudently declined, understanding that L.W.'s suitability to parent Harold was questionable, and Elaine's nonexistent. The judge correctly appreciated that Harold was entitled to permanency and that his only prospect for a safe and stable home was with the resource family.

As in every termination case, this child will experience harm as a result of the termination of parental rights. But that is a harm significantly less than the harm that would ensue were he to be removed from his pre-adoptive home. The substantial and credible evidence in this case overwhelmingly supports termination.