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

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NOT FOR PUBLICATION WITHOUT THE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.R.,

Defendant,

and

C.G.-S.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF E.V.R.,

a Minor.

___________________________________

June 18, 2014

Submitted May 5, 2014 Decided

Before Judges Ashrafi, St. John, and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-33-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.V.R. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This appeal arises from a termination of parental rights. After careful review of the record in light of the issues raised, we reject the arguments asserted by C.G.-S. We affirm substantially for the reasons set forth in the well-reasoned opinion of Judge Camille Kenny delivered orally on the record on June 27, 2013, and in a written opinion on August 23, 2013. We add the following comments to summarize the basis for Judge Kenny's decision and to set forth the legal principles that apply.

The considerations involved in termination-of-parental-rights cases are extremely fact-sensitive, "requir[ing] particularized evidence that address[es] the specific circumstance[s] in the given case." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (internal citations omitted). Thus, a reviewing court gives great deference to the Family Part's factual findings because it had "the opportunity to make first-hand credibility judgments about the witnesses" and a "'feel of the case'" that cannot be realized by a review of the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Similarly, an appellate court also defers to the trial judge's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

The Family Part's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." E.P.,

supra, 196 N.J. at 104 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)); accord N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Parental rights may be terminated pursuant to N.J.S.A. 30:4C-15.1(a) when:

(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) [DCPP]1 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.

The Division bears the burden of proving each prong by clear and convincing evidence. G.L., supra, 191 N.J. at 606. The 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

C.G.-S. is the natural father of E.V.R., who is now three years old. The child's mother, E.R., gave a general surrender of her parental rights at the outset of the guardianship proceedings. E.V.R. suffers from Fetal Alcohol Syndrome. As a result of that syndrome, she is a special needs child. C.G.-S. was an absent parent for at least the first six months of E.V.R.'s life. Even when confronted with his parental status, C.G.-S. resisted any responsibility for his child. He insisted on proof that he was the biological father. When paternity was proven, he was at best a sporadic and a very limited participant in E.V.R.'s life.

Initially, C.G.-S. did not acknowledge that he had fathered E.V.R. because he did not wish to reveal his intimate relationship with E.R. to the woman whom he described as his common-law wife. When he did acknowledge his parental status and was provided an opportunity to parent E.V.R., he demonstrated disinterest in every aspect of that role.

He had a history of domestic violence, which caused him to be absent from the home he shared with his common-law wife. He intermittently participated in reunification efforts with E.V.R., including therapeutic counseling and parenting classes. He was a reluctant participant in drug and alcohol counseling. Despite his profession that he no longer abused either alcohol or drugs, he consistently tested positive for both throughout the reunification efforts. His attendance at court sessions relative to the termination of his parenting rights was irregular. For almost two years after being advised that he had fathered E.V.R., he made no meaningful efforts to demonstrate that he was a fit parent.

C.G.-S. argues on this appeal that he has been, and is, willing to provide a home for E.V.R. with his common-law wife. As Judge Kenny noted, this assertion is contrary to the reality of C.G.-S.'s lifestyle, his limited parenting skills and his common-law's wife ability and inclination to provide the special care E.V.R. requires. C.G.-S. argues that the court below acted precipitously in terminating his parental rights by not permitting an appropriate period of time for reunification. He argues that this is a particularly relevant factor given that there has been no bonding with the foster parent, and the foster parent does not wish to adopt the child. In sum, C.G.-S. avers that the determination to terminate his parental rights was premature and the matter was not ripe for a decision on termination of his parental rights. We disagree.

The inescapable conclusion as determined by the trial court on an extensive record is that the past conduct of C.G.-S. is a predictable indicator of his future conduct when it comes to parenting. We concur with these findings as supported by "adequate, substantial and credible evidence in the record." Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (internal citations omitted). The court's factual determinations lead to its conclusion that E.V.R.'s safety, health or development has been, or will continue to be, in danger by her relationship with C.G.-S. There is substantial evidence that supports the court's findings and conclusion on the first prong of N.J.S.A. 30:4C-15.1(a).

Even if C.G.-S. demonstrated a superficial willingness to eliminate the harm facing E.V.R., the record supports the finding that he would be unable to provide a safe and stable home, especially as required by the child's special needs. C.G.-S. was periodically absent from his home for sustained durations, which belies any claim that he can provide stability. It is without dispute that E.V.R.'s special needs require a fully-engaged and knowledgeable parent. In the absence of that parenting, the child would be harmed. The evidence adduced at the trial, including expert testimony, supports the judge's finding that the harm visited upon E.V.R. would be both physical and emotional or psychological. This satisfies the second prong of N.J.S.A. 30:4C-15.1(a).

The efforts to provide services to assist C.G.-S. correct the circumstances which led to E.V.R.'s placement were diligent "though unsuccessful." "Success" is not the measure. D.M.H., supra, 161 N.J. at 393. The judge delineated in her opinion the alternatives to termination and found them not to be feasible. The record amply supports that finding which satisfies the third prong of N.J.S.A. 30:4C-15.1(a).

The fourth prong of the best interest test involves a balancing of relationships. N.J.S.A. 30:4C-15.1 (a)(4); K.H.O., supra, 161 N.J. at 355. Again, C.G.-S. argues that the court's finding regarding this prong was premature, as there was no permanent placement plan for E.V.R.

In E.P., supra, 196 N.J. at 88, the Court addressed the "opportunity of permanency" as a factor of significance. In E.P., the mother's rights were terminated by the trial court due to her drug addiction, psychological problems and unstable lifestyle. The Court held that the Division did not satisfy N.J.S.A. 30:4C-15.1(a)(4) by clear and convincing evidence. Although the mother and child had not lived together for nine years, they maintained a strong emotional bond. Id. at 109. The Court found that termination of parental rights did not appear to have any compensating benefit to the child due to the slender prospect of adoption. Id. at 109-110.

The Court acknowledged that the circumstances of the case were "unique[.]" Id. at 114. The child was placed in multiple foster homes and had attempted suicide several times. Concededly, she had few prospects for adoption. Ultimately, the decision hinged on the determination that the parent-child relationship provided "the one sustaining force in [the child's] life - her mother's love and emotional support." Id. at 109.

Here, there is no evidence of a strong emotional bond between C.G.-S. and E.V.R. In fact, the evidence demonstrated a paucity, at best, of bonding between the parent and child. Although the placement prospects for E.V.R. have not been determined relative to adoption, there is nothing in the record to support a finding that adoption prospects are slender or that she may become a "legal orphan."2 While there was no evidence presented regarding the bonding by the foster parents - who provided exceptional care to E.V.R. but did not wish to adopt her - the judge found that it was in the child's best interest to sever the relationship with C.G.-S.

This was so that the child could be placed in a residence with a defined parent-child relationship and another nurturing caretaker who would adopt the child. While we recognize the importance of providing permanence, we also recognize that the child should not "languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F. 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007).

The judge's finding, supported within the record, satisfies the fourth prong of N.J.S.A. 30:4C-15.1(a). Moreover, when this finding is considered in relation to and overlapping with the other three prongs, the judge's decision to terminate the parental rights of C.G.-S. is unassailable. See K.H.O., supra, 161 N.J. at 348.

Affirmed.

1 DCPP is the Division of Child Protection and Permanency, formerly known as DYFS. In this opinion, we will refer to it as "the Division."

2 In accordance with R. 2:6-11(f), this court has been advised E.V.R. has now been placed in a pre-adoptive home.