NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4646-12T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

P.O.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.B.,

a Minor.

_____________________________

June 10, 2014

Submitted May 28, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FG-10-105-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief).

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

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

PER CURIAM

Defendant P.O. appeals from a May 21, 2013 order terminating his parental rights to his son M.B. After an extended trial, Judge Hany A. Mawla issued an oral decision comprising 107 pages, finding that the State satisfied the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a). We affirm for the reasons stated in his thorough and well-reasoned opinion.

The facts are set forth in detail in the judge's opinion. A brief summary will suffice here. M.B. was born in April 2008. Defendant was incarcerated at the time his son was born and remained in prison for the first three years of the child's life. As a result of defendant's incarceration and the mother's intractable drug problems, the Division of Child Protection and Permanency (Division) placed the child with his maternal great-grandmother, D.S., and her long-time partner, J.R., in March 2009.1 The child has thrived in the care of D.S. and J.R., and they both testified that they wish to adopt him. According to a psychological evaluation performed on August 18, 2010, the child has bonded with D.S. and her partner.2

D.S. and her partner have adopted M.B.'s cousin, who is a few years older than M.B. The two boys have a good relationship. In May 2011, the child's mother made an identified surrender of her parental rights in favor of D.S. In her trial testimony, which Judge Mawla found credible, D.S. stated that she understood the concept of kinship legal guardianship (KLG), because it was explained to her when she adopted the cousin. She testified that she did not want a KLG arrangement; she wanted to adopt M.B.

The Division was unable to provide defendant with services while he was incarcerated in New York State. Defendant was not released from prison until May 2011. At that point, counsel was assigned to represent him in the guardianship proceedings.

The trial began in November 2011, but was interrupted for several months because defendant once again became incarcerated. Thereafter, he participated by telephone from prison until he was released and was able to attend the trial in person. By the end of the trial, defendant's counsel was unable to contact him, and defendant's New York parole officer provided a certified letter attesting that defendant had become a fugitive. By the time Judge Mawla issued his opinion, defendant was back in prison in New York.

Defendant missed more than half of his scheduled visits with the child. The parties considered arranging for bonding evaluations of defendant with the child, but eventually agreed that such evaluations would not be productive because defendant had spent so little time with the child. Judge Mawla credited the testimony of the State's expert psychologist that defendant was not a fit parent and found that defendant could not mitigate the harm that would be caused to the child if he were separated from the great-grandmother and her partner. Judge Mawla also credited the testimony of the child's mother that, during the relatively brief time when defendant was out of jail, he lived with her, used cocaine with her, and "encouraged her to prostitute herself for money for drugs."

On this appeal, defendant raises the following points of argument for our consideration:

POINT I. THE TRIAL COURT'S DETERMINATION THAT THE DIVISION EXPLORED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS IS FUNDAMENTALLY FLAWED BECAUSE THE DIVISION CASEWORKERS PROVIDED FAULTY LEGAL ADVICE TO THE CAREGIVERS REGARDING THEIR CHOICE TO ADOPT AS OPPOSED TO A PLAN OF KINSHIP LEGAL GUARDIANSHIP.

POINT II. THE MATTER SHOULD BE REVERSED SINCE P.O.'S RIGHT TO COUNSEL IN THIS MATTER WAS VIOLATED OVER A SUBSTANTIAL PERIOD OF THE PROCEEDINGS.

POINT III. THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING P.O.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. The court's findings regarding the fourth prong were clearly in error because the court failed to consider the comparative harm to the child due to the severance of the parental relationship.

B. There was not clear and convincing evidence to support the trial court's determination that P.O. was unwilling or unable to parent his child and the trial court's decision is not supported by substantial credible evidence.

C. The Division's efforts to reunify the family were insufficient to satisfy its obligations under the third prong.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion R. 2:11-3(e)(1)(E). We add only these comments.

In striking a balance between a parent's constitutional rights and a child's fundamental needs, courts employ the four-part guardianship test articulated 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).]

In their application, the four factors above "'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)).

In reviewing Judge Mawla's decision, we must defer to hisfactual 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 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).

Having reviewed the record, we conclude that Judge Mawla's factual findings are based on sufficient credible evidence, and in light of those findings, his legal conclusions are unassailable. His decision, that termination of defendant's parental rights is in the child's best interests, is amply supported by the record.

Affirmed.

1 Due to her drug problems, the mother had previously left the child with family members, even before the Division intervened. In fact, D.S. and J.R. testified that they had cared for the child since he was three days old. The Division ruled out the child's maternal grandmother, based on a psychological evaluation and her lack of stable housing. The Division also considered maternal cousins, but ruled them out because they were only interested in serving as back-up caretakers, in case D.S. became unable to care for the child. The Division contacted defendant's mother as a possible placement, but she told the caseworker that she was unable to care for M.B., because she was already caring for another one of defendant's children.

2 In 2010, the Division considered moving the child to another placement due to concerns about D.S.'s age. However, the Law Guardian opposed the move. The court ordered that the child remain with D.S., based on a psychological evaluation showing that the child was already strongly bonded with D.S. and J.R.