DIVISION OF CHILD PROTECTION AND PERMANENCY v. H.T.

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                        NOT FOR PUBLICATION WITHOUT THE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-1196-16T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

H.T.,

        Defendant,

and

M.D.,

     Defendant-Appellant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF J.D. and G.D., minors.
__________________________________

              Submitted April 12, 2018 – Decided May 7, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FG-02-0068-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Albert M. Afonso, Designated
              Counsel, on the brief).
            Gurbir S. Grewal, Attorney General, attorney
            for respondent (Jason W. Rockwell, Assistant
            Attorney General, of counsel; David G.
            Futterman, Deputy Attorney General, on the
            brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minors (Todd Wilson,
            Designated Counsel, on the brief).

PER CURIAM

      Defendant M.D.1 appeals from the Family Part's November 7,

2016 judgment of guardianship terminating his parental rights to

his children, J.D., born April 2014, and G.D., born August 2015.

Defendant    contends   that     the       plaintiff,     Division   of     Child

Protection and Permanency (Division), failed to prove the second

and fourth prongs of 
N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence.    We find no merit to defendant's arguments and affirm

substantially for the reasons stated by Judge William R. DeLorenzo

in his comprehensive written decision, also dated November 7,

2016.

      In his thorough eighty-two page decision, Judge DeLorenzo

found the Division demonstrated, through the submission of clear

and     convincing   evidence,    that       all   four     prongs   supported

termination of defendant's parental rights.               Because the judge's




1 Pursuant to Rule 1:38-3(d), we use initials to protect the
confidentiality of the participants in these proceedings.


                                       2                                  A-1196-16T4
findings were supported by evidence the judge found credible, we

are obligated to defer to his findings.          N.J. Div. of Youth &

Family Servs. v. F.M., 
211 N.J. 420, 448-49 (2012).

     The pertinent findings of fact were set forth in detail in

Judge DeLorenzo's decision and need not be repeated here at length.

They are summarized as follows.         Defendant and H.T.2 are J.D.'s

and G.D.'s parents.     Other than for a brief period after J.D.'s

birth, neither child has ever been in defendant's custody or care,

primarily due to his long standing mental health and substance

abuse issues, criminal and domestic violence history, and failure

to adequately attempt to address any of his problems.

     Psychological    evaluations   revealed   that     defendant    had    a

history of depression and that he needed to participate in therapy,

substance   abuse    treatment,   domestic   violence    counseling      and

parenting classes.    He suffered from anxiety and experienced major

bouts of depression.3    Specifically, defendant has been diagnosed



2
    H.T. has not appealed from the Family Part's guardianship
judgment terminating her parental rights and has not participated
in this appeal.
3
     His mental health history included a September 2012
hospitalization after he attempted to commit suicide.         While
hospitalized he tested positive for cocaine and benzodiazepine and
confirmed that he drank beer and used various controlled substances
including marijuana, cocaine and various medications that had been
prescribed for H.T.


                                    3                               A-1196-16T4
with alcohol dependence, depressive disorder, anxiety disorder,

and a personality disorder with borderline narcissistic features.

      Based upon defendant's mental health and substance abuse

issues, which he tended to minimize and not seek treatment for,

that caused him to act out in an aggressive manner, defendant was

never a candidate for parenting his children.                  The uncontroverted

expert testimony suggested that the children's placement with

defendant could not even be considered until he participated in

counselling and therapy for at least one year to eighteen months.

Despite that recommendation, defendant did not fully participate

in   any   services    and     only    visited      with     his   children    on    an

inconsistent basis throughout the guardianship litigation.

      Because      defendant     never       had     any     meaningful   parental

relationship with his children, a bonding evaluation was never

performed.        According to the Division's psychologist, it was

unlikely    any    attachment     or    bond       existed    beyond   defendant's

children considering him no more than a visitor rather than a

caregiver or parent.

      At   the    guardianship        trial,       the   Division    presented       as

witnesses its caseworkers and psychologist.                    Defendant did not

testify or present any witnesses.              After considering the evidence

adduced at trial, Judge DeLorenzo issued a written decision setting

forth his reasons for terminating defendant's parental rights.

                                         4                                    A-1196-16T4
The judge made detailed credibility findings and determined that

the Division proved by clear and convincing evidence all four

prongs of the best interest test set forth in 
N.J.S.A. 30:4C-

15.1(a).    As to the first prong, the judge cited to defendant's

history of substance abuse and psychiatric issues, arrests, lack

of progress in services designed to address his issues and his

lack of employment as endangering his children.

     Turning to the second prong, Judge DeLorenzo found that

defendant   was   unwilling   or   unable   to   address   his   issues    as

demonstrated by his inability to provide his children with a safe

and stable home, failure to complete services intended to help him

reunify with his children, and lack of sobriety.            Specifically,

Judge DeLorenzo found that defendant failed to appear for several

substance abuse evaluations that the Division scheduled for him,

that after attempting suicide, he tested positive for cocaine and

marijuana while he was hospitalized and that he also "reported to

the hospital that he was drinking between six (6) and ten (10)

beers daily, and . . . taking . . . Klonopin" prescribed for H.T.

The judge observed that despite receiving recommendations from two

different doctors that he "attend weekly psychotherapy" defendant

"ha[d] yet to engage in such treatment on a consistent basis[.]"

He also relied upon expert testimony that it would take at least



                                    5                               A-1196-16T4
eighteen months of therapy and sobriety before defendant could be

considered as a viable parent for his children.

       Addressing the third prong, the judge found that the Division

made    reasonable   efforts   by    providing   numerous   services    to

defendant and properly considering alternatives to the termination

of his parental rights. The judge delineated the services provided

and the relatives considered by the Division, but ruled out as

possible caregivers for the children.

       Finally, as to the fourth prong, Judge DeLorenzo found that

termination of defendant's parental rights would not do more harm

than good.    The judge concluded that due to the risk of harm that

defendant's mental health and substance abuse issues created for

the children, his never having provided any care for his children

for any meaningful duration, and the lack of any attachment between

him and his children, the termination of his parental rights would

not be of any consequence to the children.           Relying on expert

testimony, he explained that "the reason no bonding evaluations

were conducted with regard to [the] children and [defendant] was

because [defendant is] not fit to take care of [the children] at

this time."    The judge noted that the children "are situated in a

committed, loving home, which is also dedicated to ensur[ing]

their proper development and maintaining their relationship to

their biological siblings."         Defendant, on the other hand, "(1)

                                      6                          A-1196-16T4
[does] not have a realistic plan for care of the [c]hildren; (2)

[does] not have verifiable, full-time employment; (3) does not

have independent, stable shelter; and (4) . . . has not engaged

in therapy as recommended."         This appeal followed.

     We begin our review by acknowledging that parents have a

constitutionally protected right to the care, custody and control

of their children.       Santosky v. Kramer, 
455 U.S. 745, 753 (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 (1972) (second alteration in original) (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); K.H.O., 
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).           At times, a parent's interest

must yield to the State's obligation to protect children from

harm.     See N.J. Div. of Youth & Family Servs. v. G.M., 
198 N.J.
 382, 397 (2009); see also In re Guardianship of J.C., 
129 N.J. 1,

10 (1992).    To effectuate these concerns, the Legislature created

                                      7                              A-1196-16T4
a test for determining when 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 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 See also N.J. Div. of Youth & Family Servs. v. A.W., 
103 N.J. 591, 604-10 (1986).

     Based   on   our   review   of   the   record,    we   find   that   Judge

DeLorenzo's conclusion that the Division proved all four prongs

was supported by substantial credible evidence.               See F.M., 
211 N.J. at 448-49.         We also conclude that defendant's appellate

arguments "are without sufficient merit to warrant discussion in

a written opinion[.]"      R. 2:11-3(e)(1)(E).        Suffice it to say that


                                      8                               A-1196-16T4
although   there   are   "very   few   scenarios   in   which   comparative

[bonding] evaluations" are not required, N.J. Div. of Youth &

Family Servs. v. A.R., 
405 N.J. Super. 418, 440 (App. Div. 2009),

this case presents such a scenario.        The argument that the fourth

prong is satisfied here is not that the children would be harmed

by losing their relationship with their resource parents, which

plainly would require comparative evaluations.          See J.C., 
129 N.J.

at 18.     Rather, the harm posed is defendant's unfitness as a

parent, irrespective of any attachment the children have to their

resource family.

     Affirmed.




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