NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. W.A.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

W.A.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF I.A., a minor.

__________________________________

January 24, 2017

Argued December 15, 2016 - Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-12-15.

Christine Olexa Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief).

Leah A. Schmidt, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schmidt, on the brief).

Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for minor I.A. (Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor; Ms. Seidman, on the brief).

PER CURIAM

We examine challenges to a January 4, 2016 Family Part judgment terminating the parental rights of defendant W.A. and awarding plaintiff the Division of Child Protection and Permanency Services (the Division) guardianship to effectuate the adoption of now twelve-year-old I.A. The judgment also terminated the parental rights of the child's mother, N.G., who has not filed an appeal.1 Defendant seeks reversal, arguing the Division failed to present clear and convincing evidence to sustain the judgment terminating his parental rights.

The scope of this court's review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We are obliged to accord deference to the trial judge's factual findings and credibility determinations respecting the judge's "feel of the case" based upon the opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Reversal is required only in those circumstances when the stated findings are "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) (citations omitted).

We have considered the arguments presented and affirm substantially for the reasons expressed in the written opinion authored by Judge Jeffrey J. Waldman. R. 2:11-3(e)(1)(A). We add these comments.

Judge Waldman's opinion identifies the documentary exhibits admitted by the Division during the three-day trial. Further, the opinion summarized the testimonial evidence presented by the Division's case workers; an Atlantic City Police Officer, who arrested defendant on February 10, 2013; and the Division's expert, Dr. Alan Lee, a licensed psychologist, who conducted psychological and bonding evaluations of defendant and I.A. The criminal charges lodged included robbery, unlawful possession of a handgun, possession of prohibited devices (hollow point bullets), receiving stolen property, aggravated assault, possession of marijuana, possession of drug paraphernalia, and obstruction of justice. W.A. neither testified nor offered evidence.

Reviewing the issues presented, we note W.A. does not dispute the factual findings made by the judge, rather he challenges the weight accorded to testimony and the conclusions drawn from the facts when applying the law. Accordingly, we incorporate by reference the factual recitals set forth in pages five to twenty of the trial court opinion.

The legal standards governing our review are well established. Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). "The Federal and State Constitutions protect the inviolability of the family unit." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)), vacated on other grounds, 163 N.J. 158 (2000). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When a child's biological parent resists termination of parental rights, the court must determine whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of the parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (quoting J.C., supra, 129 N.J. at 10).

Examination "focuses upon what course serves the 'best interests' of the child." Ibid. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) (requiring the State to satisfy the "best interests of the child" test by clear and convincing evidence before termination of parental rights can be ordered). More specifically, the four-pronged statutory test requires the Division to prove

(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 [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.

[N.J.S.A. 30:4C-15.1(a).]

See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).

These standards are neither discrete nor separate; they overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Id. at 348. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

Defendant argues the Division failed to meet its burden. He maintains the judge erred when he found: (1) defendant put [I.A.'s] "health and safety at risk when he engaged in criminal activity that reached inside of the home"; (2) defendant, who remained incarcerated throughout the proceeding, was unwilling or unable to eliminate any perceived harm to the child; (3) the Division reasonably provided services to effectuate reunification; and (4) considered credible the expert's opinion that termination was in the child's best interest and would not do more harm than good. We examine these arguments.

Addressing the first statutory prong, "injury to children need not be physical to give rise to State termination of biological parent-child relationships." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing J.C., supra, 129 N.J. at 18). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." Ibid. (citing J.C., supra, 129 N.J. at 18).

In this matter, defendant's arrest followed a police raid of his residence, after he and his co-defendant fled to avoid detention. The police observed and seized a loaded stolen handgun, hollow point bullets, marijuana, drug paraphernalia, and a crack stem in his bedroom, where the then eight-year-old I.A. also slept. N.G.'s statements to police confirmed W.A. engaged in criminal activity and drug use. W.A. smelled of marijuana when arrested and later evaluations confirmed he suffered from unremitted substance abuse.

Even accepting W.A.'s assertion he was innocent of the robbery charges, the uncontroverted fact remains he fled from police, his home was not safe for I.A. because it contained an illegal, loaded weapon and drugs accessible to the child. We conclude this conduct reflects the failure to exercise a minimum degree of care and exposed the child to significant and substantial risk of harm. See N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 22 (2013).

Further, contrary to W.A.'s suggestion, his incarceration was not the single basis supporting a finding the Division satisfied prong one. The judge's opinion noted W.A.'s incarceration, lasting more than three years without the prospect of a release date, prevented reunification and precluded defendant from providing a permanent home for I.A.2 See L.A.S., supra, 134 N.J. at 143 ("A parent's lengthy incarceration is a material factor that bears on whether parental rights should be terminated.").

Endangerment is not limited to threats of physical harm. K.L.F., supra, 129 N.J. at 44. Dr. Lee related W.A.'s history of substance abuse, noting he remained at a heightened risk of relapse, and criminal recidivism. The psychological evaluation also demonstrated W.A.'s parental unfitness, showing he was ill-equipped to care for a child, lacked parenting skills, and reflected no insight regarding his child's physical or psychological needs.3 Dr. Lee reported W.A. would not likely be able to provide adequate care for I.A. in the near future because of his "maladaptive personality" and "anti-social behaviors."

Further, the record does not support W.A.'s claim he was an active parent and a principal caregiver for I.A. No evidence was offered to demonstrate his performance as I.A.'s caregiver prior to his arrest or show how I.A. relied on him as a parent. The record does show defendant made limited efforts to remain in contact with the child, as he participated in only a few telephonic counseling sessions, and later refused to write to the child. Generally, we can state the record is void of proofs demonstrating W.A. enjoyed a caring interactive relationship with his son. See L.A.S., supra, 134 N.J. at 143 (outlining factors to be considered when assessing incarcerated parent's challenge to termination of parental rights). In fact, during the litigation, visitation by the child at the jail was found not beneficial to I.A.'s interests and the child expressed his desire not to see W.A. Considering all evidence of record, we conclude prong one is satisfied by clear and convincing evidence.

We also discern no evidence to refute the Division's proofs showing W.A. failed to mitigate these harms, in satisfaction of prong two. We note the Division recommended W.A. participate in substance abuse treatment, random urine screens, individual counseling, anger management classes, and domestic violence counseling, to which he was amenable. His claims of being impeded by prison overcrowding may have prevented these services from being extended, as advised by W.A.'s prison social worker; however, W.A. refused to engage in substance abuse counseling services that were available (Crossroads, Alcoholics Anonymous, and Narcotics Anonymous), despite his need for them. Instead, he refused to participate and also rejected the request for a follow-up bonding evaluation.

Visiting with I.A. in the prison was rejected by the child's therapeutic residence case manager4 as not in his best interests, as well as by I.A. himself. W.A. now suggests the Division should have arranged for regular telephone contact between him and the child. This claim was not raised during the monthly visits between a Division caseworker and W.A., nor was it requested during the litigation. We reject W.A.'s contention the Division should have done more, noting it ignores his lack of initiative and, more importantly, the psychological difficulties facing the child.

Further, we reject as unfounded W.A.'s related claim arguing the Division's efforts fell short of satisfying prong three because it failed to assist available relative placements to obtain placement approval to care for I.A. The argument lacks merit. The Division investigated four relatives and two family friends, none of whom qualified as a possible resource for I.A.

Finally, as to the fourth prong, Dr. Lee acknowledged I.A. knew W.A. but the child did not interact with him. Dr. Lee's assessment concluded the bond between father and son was not positive, but "ambivalent and insecure." Dr. Lee opined I.A. would not suffer significantly if his relationship with W.A. was severed, and any harm could be mitigated by therapy.

We reject the claim Dr. Lee tainted the bonding evaluation as unsupported and meritless.5 R. 2:11-3(e)(1)(E). Indeed, we defer to the trial judge's reliance on the unrefuted expert opinion, which he found credible. M.M., supra, 189 N.J. at 279.

We conclude Judge Waldman applied the appropriate legal standards to the facts. His conclusion the Division's evidence clearly and convincingly satisfied the four prongs of N.J.S.A. 30:4C-1(a), was well-grounded, and justified the termination of parental rights.

Affirmed.

1 The judgment also granted the Division guardianship of N.G.'s second child A.A., whose father is unknown. A.A. is not involved in this appeal.

2 When briefs were filed in this matter in September 2016, W.A. remained incarcerated. The Atlantic County Criminal Case Manager was unable to corroborate W.A.'s current case status.

3 When removed from his home, the Division confirmed I.A. missed thirty-five days of school and was behind in Math and English. I.A. was diagnosed with a specific learning disorder, which had not been addressed by his parents. The child also required therapeutic treatment to address sexual acting out and boundary issues.

4 I.A. was residing in a treatment residence, not a pre-adoptive home.

5 W.A. raised two challenges. He states I.A. was required to leave the room when the evaluation was concluded. Importantly, Dr. Lee explained he did not ask W.A. to leave the room before I.A. because W.A. was to be handcuffed and escorted by sheriff's officers, a circumstance he sought to avoid in the child's presence. W.A.'s other suggestion was the bonding evaluation was unsuccessful because there were no toys in the room. This argument is specious.