DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.M.

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NOT FOR PUBLICATION WITHOUT THE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.

M.M.,

Defendant-Appellant,

and

J.T. and O.H.,

Defendants.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

I.M.M. and A.M.M.,

Minors.

_____________________________________________________

December 17, 2015

Submitted December 8, 2015 Decided

Before Judges Fisher and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-56-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, 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; Cynthia Phillips, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.M. appeals a judgment, rendered at the conclusion of a seven-day trial, that terminated her parental rights to two children, I.M.M. (Ingrid) and A.M.M. (Adam), who were born on July 27, 2007, and February 26, 2010, respectively. Ingrid was defendant's tenth child and Adam her eleventh. A twelfth, born on December 19, 2010, is not involved in these proceedings. One of defendant's first nine children died. None of the other children were in defendant's custody by the time of Ingrid's birth.1

In considering defendant's appeal, we start by observing that 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, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); 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. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); 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 of Child Protection and Permanency 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.

In appealing the judgment terminating her parental rights to Ingrid and Adam, defendant does not challenge the trial judge's findings on the first and second statutory prongs. Regarding those two prongs, the judge found that at the time of removal from defendant's care in 2012, Ingrid and Adam then four and two years old, respectively were found "wandering around the neighborhood in the middle of the night" because defendant had abandoned them "in order to go out and drink alcohol." He also determined that "the record is replete" with instances of defendant's relapses and "recurrent abuse of alcohol." In discussing the third prong, the judge found that to the extent defendant participated in substance abuse treatment she did not do so earnestly, and, in fact, she "does not believe she has a problem"; the judge observed that defendant has exhibited a "lack of effort and . . . lack of intensity with regard to treating this issue."

Instead of challenging these findings, defendant has attempted to demonstrate that the Division failed to present clear and convincing evidence to support the third and fourth prongs. We find insufficient merit in her arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth in Judge Damon G. Tyner's cogent and thoughtful written opinion.

Affirmed.

1 In 2006, defendant was convicted of child endangerment regarding her parenting of three of her other children.