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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOCKET NO. A-4051-12T3

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.T. and J.L.H.,

Defendants-Appellants.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.L.H., JR., a minor.

____________________________________________________________

May 16, 2014

Submitted April 29, 2014 Decided

Before Judges Fisher, Espinosa and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-146-12.

Joseph E. Krakora, Public Defender, attorney for appellant T.T. (Eric R. Foley, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant J.L.H. (Dianne Glenn, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Merav Lichtenstein, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor child (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendants T.T. (Tammy) and J.L.H. (John) appeal a judgment terminating their parental rights to one child, J.L.H., Jr. (Junior), who was born on April 8, 2010.1 We find no merit in their appeals, which we have consolidated, and affirm.

Defendants had another child, Jason, who was two years older than Junior. The Division of Youth and Family Services, now known as the Division of Child Protection and Permanency, became involved when it received a referral that Tammy, who was then seventeen years old, was pregnant and living with twenty-one-year old John. The Division offered and provided many resources then and thereafter. The couple frequently fell out of contact with the Division and were at times found to be living in deplorable conditions; the record also demonstrated that defendants repeatedly engaged in domestic violence. Ultimately, after many efforts to help, the Division conducted an emergency removal of Jason and commenced an action around the same time that Tammy gave birth to Junior seeking the termination of defendants' parental rights to Jason. After a trial regarding Jason, judgment was entered in favor of the Division, and we affirmed. N.J. Div. of Youth & Family Servs. v. J.L.H., No. A-2860-11 (App. Div. April 1, 2013). We observed that "the Division provided numerous and appropriate services to help defendants reunify with their child and address their substance abuse, unstable or inappropriate housing, and mental health, anger management and domestic violence issues" but that "[n]oneof these interventions proved successful." Slip op. at 3.

The Division also effected an emergency removal of Junior shortlyafter his birth. Additional resources were provided, with the same lack of success and, after a seventeen-day trial, the trial judge terminated defendants' parental rights to Junior.

Both defendants appeal, arguing the evidence was insufficient to support the judge's conclusions. We reject theirarguments andaffirm substantially for the reasons set forth by Judge Ronald D. Wigler in his comprehensive and thoughtful written opinion. We add only the following brief comments.

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, 161N.J. at347.

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, a 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). To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division 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.

It suffices to observe that, after the Division provided resource upon resource for approximately four years, defendants failed to remedy the circumstances that warranted the removal of both children. Defendants continued to reside together in an environment of successive domestic violence incidents. The trial judge found that defendants "were not in a substantially different position" than they were when their parental rights to the older child were terminated.

Tammy was again given the opportunity to reside in a Mommy-and-Me program, but she exhibited unruly and disruptive behavior and failed to follow house rules, leading to her discharge.2 She thereafter continued to fail to address her anger management and substance abuse problems, did not obtain suitable housing or employment, and never formulated an appropriate plan for her child. Despite the findings in the earlier termination proceedings regarding the older child, John denied the existence of his mental health issues. He did not testify, but relied on the testimony of his expert, Dr. Gerard Figurelli, regarding his mental health issues. The trial judge was unpersuaded, finding Dr. Figurelli's opinions lacked credibility3; the judge's findings are entitled to our deference.4 Cesare v. Cesare, 154 N.J. 394, 413 (1998); N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

The record was replete with evidence that the parties were given access to numerous resources. Not only were they provided with resources when the focus was on the older child, but more resources were offered after the termination of the parental rights to the older child and prior to the trial of this matter. The Division's efforts were far more than reasonable. The judge properly concluded that "after more than four . . . years of involvement with the Division, neither [parent was] able to remediate the issues that led to the removal of their children."

We lastly observe that the judge's determination on the fourth prong is solidly grounded in the evidence. The child has been in the Division's custody his entire life, and in the care of his foster mother for nearly as long; the foster mother is committed to adopting Junior. The child's need for permanency and defendants' failure to address their issues compelled the finding that termination will not do more harm than good.

Affirmed.

1All names used are fictitious.

2Tammy had been admitted to that program when Jason was an infant, but she and John continued to act violently toward each other. For example, in June 2009, after a family team meeting, both defendants agreed to refrain from domestic violence, and Tammy agreed to comply with the program's rules. Later that night, Tammy broke those rules by taking the older child on an unsupervised visit to John's residence, where they eventually engaged in a fight that caused injuries to both Tammy and the older child, who was taken to the hospital for treatment.

3The judge stated that he "did not find Dr. Figurelli credible and therefore gave little weight to his opinions." He explained that "[m]ost disturbing . . . was that Dr. Figurelli did not conduct an adequate review of the record prior to evaluating [John]." For example, the judge observed that Dr. Figurelli "failed to pose many vital questions to [John] which would have been critical to get at the heart of the issues," and "Dr. Figurelli did not have a comprehensive understanding of [John's] background and therefore did not have the proper context in which to adequately question [John] or analyze his test results."

4John was hospitalized in 2008. The records of that hospitalization revealed he was admitted due to suicidal ideation. John admitted having hallucinations and hearing messages coming from a television. He also then acted in a sexually inappropriate manner with other patients and staff, and expressed to his social worker that he might sexually abuse his then four-month old son. During this hospital stay, John admitted to having sexually molested a five-year old girl when he was thirteen years old, and that shortly before his 2008 admission, he had had sexual relations with a thirteen-year old girl. John was diagnosed with schizophrenia plus post-psychotic depression.