NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. B.B.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3838-12T1

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

B.B.S. and P.W.F.,

Defendants-Appellants.

IN THE MATTER OF THE

GUARDIANSHIP OF L.A.S.,

a Minor.

July 7, 2014

Submitted June 3, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-118-13.

Joseph E. Krakora, Public Defender, attorney for appellant B.B.S. (A-3837-12T1) (Louis W. Skinner, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant P.W.F. (A-3838-12T1) (Jared I. Mancinelli, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.A.S. (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

Defendants P.W.F. and B.B.S., who for the sake of anonymity will be referred to as Patricia and Robert, appeal a March 26, 2013 order terminating their parental rights to their daughter, L.A.S., whom we shall refer to as Lauren. After a two-day trial, Judge Linda G. Baxter rendered a thorough, comprehensive, and cogent decision from the bench, finding that plaintiff New Jersey Division of Child Protection and Permanency (the Division) satisfied the four prongs of the best interest test, N.J.S.A. 30:40C-15.1(a). We affirm.

The facts are extensively detailed in Judge Baxter's opinion and need not be repeated here. We briefly summarize the relevant circumstances drawn from the record. Lauren was born in February 2009. Patricia had eleven other children; Robert was the father of Lauren and one other child. All were placed with other family members. In fact, one of Lauren's half-siblings was adopted, after termination of parental rights, by the couple who now wishes to adopt Lauren.

At birth, Lauren did not test positive for cocaine, as had been the case with Patricia's last child. Both Lauren and her mother were discharged from the hospital when the child was two days old.

On April 28, 2009, when Lauren was approximately two months old, the Division received a referral that she had fallen out of her stroller and not received any medical attention. As a result of the fall, the child had a lump on her head near her eye. Patricia, who had been drinking all day, was intoxicated when interviewed by the Division worker. The Division removed the child on an emergency basis.1

Over the next three months, Patricia and Robert were offered services, including substance abuse treatment and parenting classes. They complied, and on July 23, 2009, the Division dismissed its first abuse and neglect complaint although it continued to visit the parents monthly. Services continued to be offered to the parents, and on November 22, 2010, the Division closed its file.

By September 2011, Robert was living in a rooming house for parolees. Lauren, who was then approximately two years old, and Patricia, were living there as well because Patricia was homeless. The police were called to Robert's residence because the couple was fighting. After they arrived, they contacted the Division because they feared the housing situation was unsafe for Lauren.

The parents were highly intoxicated. The child was very dirty, smelled very badly, had a soiled diaper, and generally appeared unkempt. Patricia also had a foul odor about her person and was very unclean. Patricia explained that she had been evicted from her apartment and had since been living with Robert. She admitted that she had gotten into an argument with Robert after having "a couple beers." Lauren was removed a second time under the Dodd Act. Shortly afterwards, Lauren was placed with the relatives who had adopted her half-sibling. According to the psychological evaluation completed on February 15, 2013, Lauren has bonded with the prospective adoptive parents.

The Division then attempted supervised visitation, first, with another family member. After approximately eight months, that individual notified the Division that she was no longer willing to supervise the visits because of problems with the condition and conduct of the parents, most notably, that Patricia frequently smelled of alcohol and was often argumentative. The Division took over supervision; however, that ended after two months because in June 2012, Robert and Patricia were arrested on aggravated assault charges and were incarcerated to the date of trial.

The Division's expert, Linda Jeffrey, Ph.D., testified that Patricia suffers from an adjustment disorder with disturbance of conduct and a mixed personality disorder. Dr. Jeffrey found Patricia to be erratic, narcissistic, demonstrating anti-social personality traits, lacking in empathy, and having problems with rule-governed behavior. Patricia disclosed a long history of drug and alcohol abuse as well as a propensity to engage in confrontational, and at times violent, behavior. At the bonding evaluation, although Lauren knew who her mother was, she did not perceive her as a parental figure. The expert opined that terminating the relationship would not cause the child enduring or serious harm.

As a result of the expert and other testimony, Judge Baxter found that Patricia would need a minimum of two years of treatment to address her long-standing issues. In light of the fact that Patricia has not been sober for a year while living independently in the community, as opposed to while she was incarcerated, it was likely that any efforts she might make at attaining sobriety would not succeed. Patricia's parenting style resulted in her child having an insecure attachment with her, albeit an affectionate one.

Judge Baxter also accepted Dr. Jeffrey's assessment that Robert typically minimized significant events in his life others might perceive as negative. For example, during his interview with Dr. Jeffrey, he did not disclose that he had been hospitalized twice at Ancora Psychiatric Hospital, or that he had been convicted of drug distribution in August 2007. Robert was also found to suffer from an adjustment disorder with mixed disturbance of emotions and conduct, a personality disorder with narcissistic and anti-social traits, and a major depressive disorder. His tendency to resort to violence required professional intervention beginning at age thirteen, and he was dishonorably discharged from the army after punching a commanding officer. Dr. Jeffrey opined that Lauren and her father had a bond, albeit a weak bond, and that the child did not perceive him as a father figure. In her view, terminating his parental rights would not cause enduring harm.

During the trial, Robert presented an expert who said that it would take years for Robert to completely address his substance abuse issues and other personal challenges. Nonetheless, the expert also stated that he could not recommend that the child be returned to the father at that time. He urged the court to consider continuing visitation.

On this appeal, Patricia raises the following points:

A. THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT P.W.F. WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING HER DAUGHTER, L.A.S.

B. THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT DYFS HAD MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO P.W.F., BECAUSE THE SERVICES PROVIDED TO HER WERE NEITHER COORDINATED WITH OTHER SERVICES NOR PRESENTED A REALISTIC POTENTIAL TO MEET THE CHILD'S NEED FOR PERMANENT REUNIFICATION WITH HER MOTHER.

Robert raises the following points:

POINT I

THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT L.A.S.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE CONTINUATION OF THE PARENTAL RELATIONSHIP.

A. The Trial Court relied on unfounded referrals as repeat referrals.

POINT II

THE DIVISION HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT B.S.S. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING L.A.S. OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME.

POINT III

THE COURT BELOW ERRED IN FINDING THAT THE DIVISION EXERCISED REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT CORRECT THE CIRCUMSTANCES THAT LED TO L.A.S.'S PLACEMENT OUTSIDE THE HOME.

POINT IV

THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD.

Having reviewed the record, we conclude all the points raised by Robert and Patricia are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

In striking a balance between a parent's constitutional rights and a child's fundamental needs, courts employ the four-part guardianship test found in N.J. Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1(a):

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

(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).]

Those four factors "'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.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

We defer to the family court's factual findings unless they "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and quotations omitted). So long as "they are 'supported by adequate, substantial and credible evidence,'" a trial judge's factual findings will not be disturbed on appeal. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citation omitted). And we owe special deference to the trial judge's expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). In this case, the deference was warranted because of the overwhelming proofs the Division marshalled leading to the inescapable conclusion the statutory standard had been met.

Judge Baxter reiterated language from Division of Youth & Family Services v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004): "A child is not a chattel. A child cannot be held prisoner to the rights of others, even those of his or her parents. Children have their own rights and they cannot be expected to languish indefinitely while their parents get themselves together." We agree.

In this case, Lauren's parents have, over their adult life, been unable to address the problems that caused two Dodd removals in the span of two years. They are unlikely to be able to do so within a timeframe that would fulfill their daughter's needs. She is entitled to a safe and loving environment, and to permanency.

Affirmed.

1 Emergency removals of children from their homes is authorized in limited circumstances pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.