Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the OF CHILD PROTECTION AND PERMANENCY v. L.C and J.T IN THE MATTER OF THE GUARDIANSHIP OF H.E.T Mino

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This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1653-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

L.C.,

Defendant-Appellant,

and

J.T.,

Defendant.
————————————————————————————————
IN THE MATTER OF THE GUARDIANSHIP
OF H.E.T.,

Minor.
————————————————————————————————

Submitted October 11, 2017 – Decided October 30, 2017

Before Judges Hoffman, Gilson and Mayer.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-0086-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Anna Patras, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Jason W. Rockwell,
Assistant Attorney General, of counsel; Jesse
J. Sierant, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Joseph Hector
Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant L.C. appeals from a December 8, 2016 judgment

terminating her parental rights to her son H.E.T. (Harry), born

in 2010.1 Defendant raises the following points of argument for

our consideration:

THE DECISION TO TERMINATE L.C.'S PARENTAL
RIGHTS WAS NOT SUPPORTED BY SUFFICIENT
CREDIBLE EVIDENCE.

[A.] PRONGS ONE & TWO: DCPP FAILED TO DEMONSTRATE
BY CLEAR AND CONVINCING EVIDENCE A CAUSAL
CONNECTION BETWEEN THE MOTHER'S ACTIONS AND
HARM OR IMMINENT RISK OF HARM TO H.E.T. AND
THAT THE MOTHER WAS UNWILLING OR UNABLE TO
ELIMINATE THAT HARM.

[B.] PRONG THREE: DCPP DID NOT PROVIDE
"REASONABLE EFFORTS" []INCLUDING AN INQUIRY
INTO ALTERNATIVES TO TERMINATION.

[C.] PRONG FOUR: THE TRIAL COURT ERRED IN FINDING
THAT THE TERMINATION OF THE MOTHER'S

1
We use initials and pseudonyms to protect the family's privacy.
Harry's biological father, J.T., voluntarily surrendered his
parental rights before the proceedings under review.

2 A-1653-16T1
PARENTAL RIGHTS WILL NOT DO MORE HARM THAN
GOOD.

We find no merit in any of those arguments and, except as addressed

herein, they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

After a four-day trial, Judge Daniel J. Yablonsky found that

the Division of Child Protection and Permanency (Division)

satisfied the four prongs of the best interests test,
N.J.S.A.

30:4C-15.1(a). We owe deference to Judge Yablonsky's decision,

unless it was not supported by sufficient credible evidence or was

otherwise "so wide of the mark that a mistake must have been made."

N.J. Div. of Youth and Family Servs. v. M.M.,
189 N.J. 261, 279

(2007) (citation omitted). Having reviewed the record in light

of that standard, we find no basis to disturb the order on appeal.

We affirm for the reasons stated by Judge Yablonsky in his

comprehensive thirty-three-page written opinion issued on December

7, 2016, and for the reasons stated in this opinion.

Since Judge Yablonsky's opinion sets forth the essential

facts, we need not repeat them here. To summarize, defendant's

involvement with the Division began in July 2010, when the Division

received a report, stating defendant lacked parenting skills to

care for her infant son, Harry. In February 2011, defendant's

mother contacted the Division and reported defendant smokes

3 A-1653-16T1
marijuana daily, "drops [Harry] off at different people's houses

to babysit," and leaves dog feces on the floor. When a caseworker

visited defendant's home the following day, defendant stated her

mother made the report because they had a physical altercation.

Defendant denied smoking marijuana, but she submitted to a urine

screen, which tested positive for marijuana.

Eventually, the Division removed Harry from defendant's care

twice due to her alcohol and marijuana abuse, with the first

removal occurring in February 2012. On April 30, 2012, defendant

stipulated to child abuse or neglect due to her positive urine

screens for marijuana and alcohol use while she was the sole

caregiver of Harry. After the Division provided defendant with

extensive services, and she completed a treatment program, the

court ordered Harry returned to defendant's care in September

2013.

The second removal occurred in July 2014, after a Division

caseworker conducted an unannounced visit at defendant's home and

found defendant visibly intoxicated and incoherent while caring

for Harry. Thereafter, the Division again provided defendant with

substance abuse evaluations and treatment; however, she continued

to relapse and test positive for both alcohol and marijuana.

Since December 2015, Harry has been with M.C., who wants to

adopt him. Before that, Harry had been in and out of six other

4 A-1653-16T1
foster homes. The Division investigated various potential

relative caregivers, but ruled them out.

At trial, which began in June 2016, the Division presented

testimony from two caseworkers, the foster mother, and Dr. Robert

Kanen, a psychologist. Defendant testified on her own behalf and

presented testimony from her expert, Dr. James Reynolds, also a

psychologist. The court also considered numerous documents

received in evidence.

Addressing prong one, the court found the Division provided

defendant with appropriate services and extensive treatment for

over five years, but defendant continued to relapse and could not

sustain sobriety. The court also found that defendant's relapses

and inability to maintain sobriety had caused harm to Harry by

delaying their reunification process. In making that

determination, the court relied on the testimony of both Dr. Kanen

and Dr. Reynolds. The court also found that defendant's "sporadic

visitations" with Harry had caused harm to the child.

Turning to prong two, the court found that defendant's history

of substance abuse demonstrated she had little likelihood of

successfully maintaining sobriety. The judge again relied on the

testimony of both Dr. Kanen and Dr. Reynolds. The court also

found defendant unable or unwilling to provide a safe and stable

home for Harry.

5 A-1653-16T1
Addressing prong three, the court found the Division had

provided defendant with reasonable services over the previous five

years, including substance abuse treatment, parenting skills

training, psychiatric evaluations, and visitation. The court also

found the Division had investigated all potential relative

caregivers, and all were "appropriately ruled out."

Finally, with regard to the fourth prong, again relying on

expert testimony, the court found the record contained clear and

convincing evidence that terminating defendant's parental rights

would not do more harm than good. In particular, the court focused

on Harry's need for permanency and found that adoption by the

foster mother provided Harry the best prospect for achieving such

permanency.

Defendant's arguments asserting the Division failed to

satisfy prongs one and two of the best interests test clearly lack

merit. See
N.J.S.A. 30:4C-15.1(a)(1), -15.1(a)(2). A parent's

"inability to provide a stable and protective home" for his or her

child is highly relevant to whether he or she "can cease to inflict

harm" on them. N.J. Div. of Youth and Family Servs. v C.S.,
367 N.J. Super. 76, 118 (App. Div.), certif. denied,
180 N.J. 456

(2004). Further, a key issue is whether the parent "can become

fit to assume the parental role within time to meet the child's

6 A-1653-16T1
needs." N.J. Div. of Youth and Family Servs. v. F.M.,
375 N.J.

Super. 235, 258 (App. Div. 2005).

Defendant's continuing failure to provide Harry with a safe

and stable home, and her inability to address her substance abuse

issues, harmed Harry by causing him to remain in foster care since

July 2014, moving among six different foster homes until his

current placement with M.C. See N.J. Div. of Youth and Family

Servs. v. R.G.,
217 N.J. 527, 557 (2014) (citing In re Guardianship

of K.H.O.,
161 N.J. 337, 348-49 (1999)). Moreover, defendant's

own expert opined that she was still not capable of acting as a

parent by the time of the trial. See F.M., supra,
375 N.J. Super.

at 258.

Defendant's arguments asserting the Division failed to

satisfy prong three of the best interests test similarly lack

merit. See
N.J.S.A. 30:4C-15.1(a)(3). The third prong

"contemplates efforts that focus on reunification of the parent

with the child and assistance to the parent to correct and overcome

those circumstances that necessitated the placement of the child

into foster care." In re Guardianship of K.H.O., supra,
161 N.J.

at 354. "Although the Division has a statutory duty to evaluate

relatives as potential caretakers, there is no presumption

favoring the placement of a child with such relatives." N.J. Div.

7 A-1653-16T1
of Youth & Family Servs. v. J.S.,
433 N.J. Super. 69, 82 (App.

Div. 2013), certif. denied,
217 N.J. 587 (2014).

The record reflects the Division made numerous referrals (and

sometimes re-referrals) for both substance abuse and psychological

counseling. Although defendant did not receive all of the

treatment recommended for her, this often occurred due to

defendant's noncompliance or nonattendance, rather than the

Division's failure to provide reasonable services. Additionally,

we reject defendant's contention that the Division arbitrarily

ruled out Harry's relatives as placements in order to terminate

her parental rights. The record provides no support for this

claim.

Defendant's arguments asserting the Division failed to

satisfy prong four of the best interests test also lacks merit.

See
N.J.S.A. 30:4C-15.1(a)(4). As explained by our Supreme Court:

When a parent has exposed a child to
continuing harm . . . and has been unable to
remediate the danger to the child, and when
the child has bonded with foster parents who
have provided a nurturing and safe home, in
those circumstances termination of parental
rights likely will not do more harm than good.

[N.J. Div. of Youth & Family Servs. v. E.P.,

196 N.J. 88, 108 (2008).]

Defendant argues the Division impermissibly limited

visitation between her and Harry in order to "strengthen its case

8 A-1653-16T1
and limit [her] defenses going forward." Furthermore, by providing

inadequate visitation, defendant argues that the Division

"manipulated the situation to deprive [her] of a meaningful

opportunity to maintain and strengthen her bond with Harry. . . ."

Defendant's argument, however, ignores the fact that she often

missed her scheduled visits with Harry and failed to maintain the

schedule the Division provided. According to a Division

caseworker, defendant often would arrive thirty to forty minutes

late to her visits, cancel her visits, or confirm her visits but

not show up.

Defendant's reliance on her visitation schedule is misplaced;

it fails to address the crux of the fourth prong's inquiry —

whether terminating defendant's parental rights would cause Harry

more harm than good. The Division placed Harry with M.C., who

wants to adopt Harry in order to provide him with a stable home.

Both parties' expert witnesses testified that M.C. is a stable

caretaker, and Dr. Kanen asserted Harry would "experience severe

distress" if removed from her care. The record does not support

defendant's argument that termination of her parental rights will

do more harm than good.

Defendant's arguments do not warrant further discussion. R.

2:11-3(e)(1)(E).

Affirmed.

9 A-1653-16T1
10 A-1653-16T1

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