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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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-0

A-1984-15T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.M.G. and M.T.B., Sr.,

Defendants-Appellants.

__________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

M.R.B., Jr.,

Minor.

___________________________________________

January 24, 2017

Submitted December 20, 2016 Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-91-15.

Joseph E. Krakora, Public Defender, attorney for appellant T.M.G. (Adrienne Kalosieh, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant M.T.B., Sr. (Charles S. Rosenberg, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa Bayly, Deputy Attorney General, on the brief).

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

PER CURIAM

T.M.G. and M.T.B., Sr. appeal from a judgment entered by the Family Part on December 23, 2015, terminating their parental rights to the minor child, M.R.B., Jr.1 For the reasons that follow, we affirm.

I.

The Division of Child Protection and Permanency (Division) first became involved with T.M.G. and her children in 2009, after receiving reports that she had tested positive for cocaine and opiates, was not consistent with her methadone treatment, lacked employment, and was living with relatives. At that time, T.M.G. had two children, J.D. and J.G. The Division determined that the children were not at risk of harm because they were either not living with T.M.G. or well-cared for.

In August 2012, T.M.G. gave birth to M.R.B. M.T.B. is the child's biological father. Several weeks after M.R.B. was born, T.M.G. contacted the Division and sought housing assistance. She informed the Division that she had not had a permanent home since June 2012, when M.T.B. allegedly became abusive. The Division referred T.M.G. and the children to housing shelters, but later, T.M.G. informed the Division that she and the three children did not have a home.

In November 2012, the Division received a report from J.D.'s school that there was domestic violence and firearms in the place where T.M.G., M.T.B. and the children were living. The Division interviewed M.T.B. He denied committing any act of domestic violence, but he informed the Division that he previously pled guilty to endangering the welfare of a child, and he is a sex offender registered under Megan's Law. N.J.S.A. 2C:7-1 to -23.

The Division found that the allegations of abuse or neglect were not substantiated. The Division decided to provide services to the family and required supervision of M.T.B.'s visits with the children.

In September 2013, T.M.G. had a substance-abuse evaluation, which revealed that she was unemployed, homeless and addicted to opiates. T.M.G. reported that she was using between four and five bags of heroin each day, and had been on methadone for seven years. She also acknowledged that she has never held a full-time job. The evaluation recommended that T.M.G. have a psychiatric evaluation and engage in opioid-maintenance therapy with intensive out-patient treatment.

It appears that, at that time, T.M.G. was staying with the children in the unfinished basement of M.T.B.'s sister's home. In October 2013, the Division received a report expressing concerns about the home. The Division investigated the report and learned that, at times, the children had been left alone with M.T.B.

The Division's worker was shown the basement of the home. The worker observed bedsheets which had been hung up as "walls" to separate the basement into living areas. The worker also noted that the children slept on mattresses on the floor, near a hot water heater and the furnace. The Division referred T.M.G. and the children for emergency housing, and T.M.G. and the children were placed in a hotel.

In February 2014, T.M.G. relapsed and tested positive for opiates four times. She claimed, however, that she never used drugs in the children's presence. On April 22, 2014, T.M.G. again tested positive for opiates. The following week, one of the Division's workers made an unannounced visit and learned that, despite the Division's previous directive that M.T.B.'s visits be supervised, T.M.G. had allowed the children to stay alone with M.T.B.

In May 2014, T.M.G. tested positive for opiates three times. On May 14, 2014, the New Brunswick Counseling Center (NBCC) informed the Division that before T.M.G. relapsed, she had been drug free for about two years. The NBCC recommended that T.M.G. have inpatient treatment for her opioid addiction.

Around this time, T.M.G. and the children left the hotel where they had been staying. However, while they were in the hotel, T.M.G. received a grant from social services for housing, but she did not use the grant to obtain suitable housing.

On May 16, 2014, the Division conducted a "Dodd" removal of the children.2 Thereafter, the Division filed a verified complaint in the trial court seeking care, custody, and supervision of the children. On May 20, 2014, the court granted the application. The children were later placed in the home of their maternal grandparents. D.S., the grandfather's daughter, lived near the home and, at times, assisted in caring for M.R.B. D.S. later committed to adopting the child.

In June 2014, T.M.G. tested positive for opiates three times. That month, Catholic Charities performed a substance abuse assessment of M.T.B. He acknowledged that he has used opiates over the course of fifteen years and occasionally smoked marijuana. M.T.B. acknowledged that he had used heroin during the week of the assessment. He also reported that he had been arrested about twenty times as an adult, and spent about twelve years in jail on various charges. It was recommended that M.T.B. participate in outpatient treatment.

In July 2014, the NBCC also conducted an evaluation of M.T.B. He reported that he had been using drugs throughout much of his life, and that he drank a half-pint of liquor on ten of the previous thirty days. M.T.B. also reported that he used heroin during fifteen of the previous thirty days.

M.T.B. denied that treatment was important for addressing his drug use. The NBCC nevertheless recommended eight weeks of outpatient treatment with urine screenings. In August 2014, M.T.B. missed his first counseling session. He also tested positive for opiates at his initial urine screening.

In August 2014, T.M.G. entered a twenty-eight-day treatment program at Integrity House. Thereafter, it was recommended that she spend an additional four to six months in the program. On September 9, 2014, T.M.G. left Integrity House and she was terminated from the program. On September 11, 2014, the NBCC conducted an evaluation of T.M.G. She reported that she had been using alcohol, marijuana, oxycodone, and heroin on a regular basis for a significant period of time.

By this time, T.M.G. had been receiving methadone treatment for about eight years. T.M.G. claimed she was employed, but she did not specify in what capacity. She was diagnosed with opiate dependence and major depressive disorder. The NBCC recommended that T.M.G. spend twelve weeks in treatment. She was referred to a treatment program. She did not, however, participate in the program.

In January 2015, T.M.G. enrolled in a methadone treatment program. She attended program meetings, but tested positive for opiates and cocaine. In April 2015, she was terminated from the program. Thereafter, T.M.G. was transferred to a clinic in Newark, where she was diagnosed with opioid abuse. The following month, T.M.G. again tested positive for opiates. Moreover, a counselor recommended substance-abuse treatment for M.T.B. However, he missed treatment meetings and continued to test positive for illegal drugs.

In May 2015, the Division filed a complaint seeking the termination of T.M.G. and M.T.B.'s parental rights to M.R.B. so that he could be adopted by D.S. The Division did not seek the termination of T.M.G.'s parental rights to J.D. and J.G. By this time, J.D. had reached the age of majority, and J.G. was in the legal and physical custody of her biological father.

In December 2015, the court conducted a trial in the matter. At the trial, the Division presented testimony from Dr. Elayne Weitz, a psychiatrist, and its workers Aimee Lee, Kathleen Flack, and Ougeri Baptiste. T.M.G. and M.T.B. attended the trial, but they did not call any witnesses.

On December 23, 2015, the judge issued a written opinion, in which she concluded that the Division had established all four criteria of the test for terminating parental rights as to both parents. The judge memorialized her decision in an order dated December 23, 2015. Thereafter, T.M.G. and M.T.B. appealed. We later consolidated the appeals.

II.

On appeal, T.M.G. and M.T.B. argue that the trial court erred by terminating their parental rights to M.R.B.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division may seek an order of the court terminating an individual's parental rights but must present clear and convincing evidence establishing the four prongs of the "best interests of the child test" established in A.W., supra, 103 N.J. at 604-11, and later codified in N.J.S.A. 30:4C-15.1(a).

The standard for our review of the trial court's findings of fact is well established. The trial court's factual findings will be upheld as long as "they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We also give considerable deference to the factual findings of the Family Part, due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

A. First Prong

The first prong of the best interests test requires the Division to establish that "the child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "[T]he focus [of the first prong] is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348.

On appeal, T.M.G. contends that M.R.B. was not harmed by her relationship with him. She argues that there was no proof she was impaired by illegal drugs while she was caring for him or her other children. She argues that in making her findings, the judge erroneously relied upon "hypothetical risks" associated with parents who use drugs.

T.M.G. further argues that the judge failed to appreciate the economic reality that "forced" her into various programs for mental health and substance abuse. She asserts the judge erroneously found that she willfully left certain treatment programs because she was challenged by those programs. She contends she provided M.R.B. and her other children with appropriate medical care, education, and housing.

In his appeal, M.T.B. argues that there is no evidence his relationship with M.R.B. caused the child any harm. He contends there is no evidence that he ever used drugs or was under the influence of any illegal substance while in the child's presence. He argues that the judge erred by assuming M.R.B. was harmed based on his status as a convicted sex offender.

M.T.B. further argues that there is no evidence to support the judge's statement that he had been diagnosed as having a potential for abuse. He contends the judge erred by emphasizing the child's need for a safe and secure home. He claims the Division "did not bother to find out" where he or T.M.G. were living at the time of trial.

We are not persuaded by these arguments. Here, the unrefuted evidence established that both T.M.G. and M.T.B. had long-standing drug addictions, and continued use of illegal substances. Moreover, the Division offered both parents services to address their persistent substance abuse, but neither parent successfully engaged in treatment.

Therefore, the judge's finding that T.M.G. and M.T.B.'s unremitted drug addictions posed a substantial risk of harm to M.R.B. is supported by substantial credible evidence. We reject T.M.G. and M.T.B.'s arguments that the child was never at risk of harm because they purportedly did not use illegal drugs in the child's presence.

Furthermore, the record shows that T.M.G. and M.T.B. failed to provide M.R.B. with a safe and secure home, which is a recognized harm for purposes of this part of the best interests test. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); K.H.O., supra, 161 N.J. at 347-48. The family was often homeless. At one point, the family was staying in the basement of a residence, with the children sleeping on mattresses placed on the floor near a furnace and hot water heater.

As noted, M.T.B. argues that the judge erred by finding that he had been diagnosed as having a potential for abuse. The Division agrees that the judge's observation was incorrect. The Division notes, however, that there is some evidence in the record that M.T.B. committed an act of domestic violence against T.M.G. In any event, the judge emphasized that there is no evidence that M.T.B. ever abused M.R.B. Thus, the judge's statement that M.T.B. had been diagnosed as having a potential for abuse was not a significant factor is her decision on prong one.

Indeed, the judge's conclusion that the Division established this part of the best interests test was based on the parents' long-standing drug addictions, their failure to fully engage in services to address their addictions, as well as their consistent failure to provide the child with a safe, stable, and secure home. Therefore, although the judge's statement was erroneous, the error was harmless.

B. Second Prong

The second prong of the best interests test requires the Division to show that "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 that harm[.]" N.J.S.A. 30:4C-15.1(a)(2). In considering whether the Division has established this part of the test, the court must consider whether the parent has "cured" the initial harm, and whether the harm presents a future threat to the child. K.H.O., supra, 161 N.J. at 348.

In her opinion, the judge found that both T.M.G. and M.T.B. are unable and unwilling to remedy the risk of harm they posed to M.R.B. The judge stated that

[b]oth parents are drug addicted[, and t]hey are presently attending drug treatment programs, but refuse to address their addictions and mental health issues in a manner that will lead to reunification with the child. Expert testimony presented by the [Division] revealed that [M.R.B.] is thriving and happy in his resource home and has bonded with the potential adopting parent. Testimony also revealed that although [M.R.B.] has established identity with his parents that to remove him from their custody will create no emotional harm. The opposite is not true if [M.R.B.] were to be removed from his present living environment. [The child's] biological parents have been referred to various treatment facilities, have been provided counseling services in the form of parenting classes, anger management and they still have been unable to eliminate the harm that [the child] will endure if he is separated from his resource parents.

The judge also noted that T.M.G. continued to "hop" from program to program. The judge pointed out that T.M.G. has been on methadone for years, but she has not reduced her use of drugs. M.T.B. also continues to test positive for illegal drug use. In a substance-abuse assessment, M.T.B. admitted that he had used heroin during the week of the assessment. In another evaluation, he admitted that he used drugs throughout much of his life.

The judge found that T.M.G. and M.T.B.'s extensive drug use makes them a danger to themselves and to M.R.B. The judge determined that T.M.G. and M.T.B.'s unwillingness to fully engage in services so that they could be reunited with M.R.B., shows that they are unable and unwilling to provide the child with a permanent and stable environment.

On appeal, T.M.G. argues that the record does not support the judge's findings. She contends she was "proactive" in addressing her need for substance-abuse treatment. T.M.G. claims she provided a "loving home" for M.R.B. and the other children. She contends that, despite her positive urine screens, the children were "well cared for." She asserts that, when M.R.B. was removed, he was a healthy child who was developing normally and appeared fine.

T.M.G. further argues that the record does not show that she ever refused inpatient substance-abuse treatment. She claims that when the Division's guardianship complaint was filed, she was "diligent in her treatment." She argues that the record does not show that she is a parent who is unable or unwilling to make herself well and fit to parent.

In his appeal, M.T.B. argues that the judge failed to assess both parents individually. He contends the judge's statement that M.R.B. has spent "a good part of his life" living in hotels or the homes of unknown persons, and has at times been homeless, pertains to T.M.G., and not to him.

M.T.B. further argues that the judge erred by considering the child's relationship with his resource parents in determining whether the Division established this part of the best interests test. He also contends that assuming his drug use did, in fact, harm the child, the record does not support a finding that he is unable or unwilling to eliminate that harm.

These arguments are without merit. There is substantial credible evidence in the record to support the judge's finding that both T.M.G. and M.T.B. are unable and unwilling to eliminate the harm to the child. As the evidence shows, despite years of methadone treatment, T.M.G. has continued to use heroin, and she refused to fully cooperate with the drug-treatment programs to which she was referred. The evidence also supports the judge's conclusion that M.T.B. failed to address his long-standing substance abuse problem.

M.T.B. argues that the family's unsuitable housing and occasional homelessness should not be attributed to him, but he also had the responsibility to provide M.R.B. with a safe, stable and secure home. He failed to do so. The evidence also shows that M.T.B. will not be able to provide M.R.B. with a safe and stable home within a reasonably foreseeable time.

Furthermore, the judge did not err by considering whether a delay in a permanent placement will cause further harm to M.R.B. Dr. Weitz testified that delaying a permanent placement while T.M.G. and M.T.B. attempt to address their drug addictions and other parenting deficiencies, will cause further harm to M.R.B. Dr. Weitz testified that the delay would cause M.R.B. to suffer anxiety, and he might blame himself for a lack of permanency.

C. Third Prong

The third prong of the best interests test requires the Division to show that it "made reasonable efforts to provide services to help the parent[s] correct the circumstances which led to the child's placement outside the home and the court considered alternatives to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). The determination of whether the Division's efforts were reasonable is made based on the facts and circumstances of each case. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). Furthermore, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." Id. at 393.

On appeal, T.M.G. does not argue that the Division failed to establish prong three. M.T.B. argues, however, that the Division failed to make reasonable efforts to help him address the circumstances that led to the child's placement outside the home. M.T.B contends that he was only offered services at the NBCC and the Substance Abuse Initiative (SAI), but he later learned he did not qualify for the SAI program. He claims the services provided were not appropriate. He asserts that when it was suggested that he attend the NBCC's inpatient program, he could not afford to do so.

M.T.B.'s arguments are without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). The evidence established that M.T.B. was afforded an opportunity for treatment at the NBCC. He asserts that some individuals came "high" to the meetings at the NBCC and sold drugs there. However, there is no evidence that any such inappropriate actions adversely affected M.T.B.'s ability to participate in the NBCC program.

Furthermore, the evidence established that M.T.B. did not consistently attend the private counseling sessions at the NBCC, although he was given every opportunity to do so. M.T.B. claims that his work schedule did not allow him to attend treatment sessions, but he admits that he eventually found a job that did not interfere with his attendance. Moreover, it was recommended that he engage in a higher level of treatment, but he quit the NBCC program.

In short, the evidence clearly and convincingly shows that the Division made reasonable efforts to help M.T.B. address the circumstances that led to the child's placement outside the home. We therefore reject M.T.B.'s contention that the trial judge erred by finding that the Division established prong three.

D. Fourth Prong

The fourth prong of the best interests test requires the Division to establish that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The Division need not show that the child will suffer no harm as a result of the termination of parental rights. K.H.O., 161 N.J. at 355. Rather, the court must consider and balance the competing relationships, and determine if the child will suffer a greater harm if the relationship with his birth parents is severed. Ibid.

Here, the judge noted that T.M.G. and M.T.B. have serious drug problems, which have not been addressed even though T.M.G. and M.T.B. had numerous opportunities to do so. T.M.G. also has a history of depression and bipolar disorder. She takes medication for these conditions, but suffers from serious anxiety if she fails to take her medication.

The judge pointed out that Dr. Weitz had opined that if M.R.B. is returned to T.M.G.'s care, he would be exposed to erratic, bizarre and frightening behavior, particularly if she does not receive ongoing treatment with medication. The judge also observed that M.T.B. has anger issues, and he has not made a genuine attempt towards reunification with the child.

In addition, the judge noted that M.R.B. had been staying with his maternal grandparents, but they found it difficult to continue to care for him, and D.S. had committed to adopting the child. While the children were placed with the grandparents, D.S. spent a considerable amount of time caring for M.R.B. in her home. The judge observed that D.S. has two small children and they have accepted M.R.B. as part of their family. The judge noted that Dr. Weitz opined that D.S. has a stable home and a steady income, and enjoys caring for M.R.B.

Dr. Weitz also opined that "the transition from the grandparents' home to [D.S.'s] home will be smooth, given the familiarity between [D.S.] and [M.R.B.]." The judge observed that Dr. Weitz concluded that M.R.B. "stands the best chance of emerging into a well-functioning, emotionally healthy child, adolescent, and adult if he establishes permanency with [D.S.]"

On appeal, T.M.G. argues that the judge erred by finding that termination of her parental rights will not do more harm than good. T.M.G. asserts that she has a strong bond with M.R.B. and there is nothing in the record showing that he has ever been subjected to erratic, bizarre or frightening behavior while in her care.

She further argues that the judge "improperly rushed" to make a permanent placement for the child. She asserts that Dr. Weitz did not find that M.R.B. has a true and enduring bond with D.S. T.M.G. also contends that the judge erred when she found that severing her relationship with M.R.B. would not do more harm than the possibility of adoption by someone who had only "recently put herself forward for the role."

In his appeal, M.T.B. argues that the judge erred by finding that he had been diagnosed as having anger-management issues. He takes issue with the judge's statement that he did not make any real attempt towards reunification with the child. M.T.B. asserts that he completed parenting-education classes, had supervised visits with the child, attended substance abuse programs, and sought employment.

M.T.B. further argues that the judge erred by referring to his statement that he feels "people's minds are made up and there's nothing to fight for." He contends that this was merely a statement that reflects a feeling of "powerlessness on the part of a loving father who believes he has not been given a fair chance to be a part of his son's life[.]"

In addition, M.T.B. argues that the judge failed to consider that Dr. Weitz found that M.R.B. did not yet have a secure relationship with D.S., and that the child would be distressed if he stopped seeing him. He contends Dr. Weitz admitted that the child had recently been placed with D.S., and it was too soon to determine if the child had an enduring bond with her.

These arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). There is substantial credible evidence in the record for the judge's finding that termination of T.M.G. and M.T.B.'s parental rights will not do more harm than good.

Here, the judge relied upon Dr. Weitz's unrefuted expert testimony for her findings on prong four. Dr. Weitz testified that although M.R.B. had relationships with T.M.G. and M.T.B., neither parent had a "true and enduring bond" with the child. On the other hand, Dr. Weitz found that D.S. provided M.R.B. with the "criteria needed to form a secure and stable, enduring bond."

The evidence was sufficient to establish that, in view of T.M.G. and M.T.B.'s unremitted drug use, their failure to provide the child with a safe and secure home, and their failure to fully engage in substance-abuse treatment, the severance of their parental bonds to the child will not do more harm than good. The judge did not err by finding that it would be in the child's best interest if he were adopted by D.S. and given the opportunity to form a secure, stable and enduring bond with her.

IV.

M.T.B. additionally argues that the trial court's judgment terminating his parental rights should be reversed because the court's conduct of the case denied him due process and fundamental fairness.

M.T.B. contends the judge improperly substituted her own diagnosis and findings for those of Dr. Weitz. He contends the judge erroneously stated that he had been diagnosed as having "anger issues that have a potential for rising to the level of abusive behavior." He asserts that the judge erred by considering anger-management issues when deciding whether his parental rights should be terminated.

M.T.B. further argues that the judge made findings about the bonds between the child, D.S. and his resource family that were inconsistent with Dr. Weitz's testimony. In addition, he contends that the judge failed to evaluate his parental fitness on an individual basis.

These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We reject M.T.B.'s contention that he was denied due process or fundamental fairness in these proceedings.

1 In this opinion, we refer to M.T.B., Sr. as M.T.B., and M.R.B., Jr. as M.R.B.

2 A "Dodd" removal refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.