NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.W.S. and J.K.C

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                                NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-4833-16T3
                                                                     A-4834-16T3


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

N.W.S. and J.K.C.,

     Defendants-Appellants.
____________________________________

IN THE MATTER OF THE
GUARIANSHIP OF L.N.S. and T.J.C.,

     Minors.
____________________________________

                    Argued October 10, 2018 – Decided October 25, 2018

                    Before Judges Hoffman, Suter and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FG-07-0153-14.
            Ryan T. Clark, Designated Counsel, argued the cause
            for appellant N.W.S. (Joseph E. Krakora, Public
            Defender, attorney; Ryan T. Clark, on the briefs).

            Marc R. Ruby, Designated Counsel, argued the cause
            for appellant J.K.C. (Joseph E. Krakora, Public
            Defender, attorney; Marc R. Ruby, on the briefs).

            Merav Lichtenstein, Deputy Attorney General, argued
            the cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jason W. Rockwell, Assistant
            Attorney General, of counsel; Merav Lichtenstein, on
            the brief).

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

PER CURIAM

      Defendant N.S. (Nancy), mother of daughters T.C. (Tanner) and L.S.

(Linda), and defendant J.C. (Jeremy), father of Tanner, challenge the Family

Part order terminating their parental rights. On appeal, defendants argue the

Division of Child Protection and Permanency (the Division) failed to present

sufficient evidence to satisfy the best interests test,  N.J.S.A. 30:4C-15.1(a)(3),

and that the trial judge erred when he denied Jeremy's request for a bonding

evaluation between Tanner and her paternal grandmother. We affirm.




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                                       I.

      We summarize those aspects of the record that are most pertinent to our

decision. Nancy is the mother of four children: Tanner (born August 29, 2005);

Serena (born August 31, 2008); Linda (born January 11, 2011); and Muhammed

(born June 9, 2017). As noted, Jeremy is the biological father of Tanner. G.F.

(Greg) is the biological father of Linda, but his parental rights were terminated

in a separate proceeding. Greg, Serena, and Muhammed are not subjects of this

appeal.

      Nancy has a serious, persistent substance abuse problem, primarily

involving phencyclidine (PCP) and alcohol. Since it first received the case in

December 2011, the Division made extensive, albeit unsuccessful, efforts to

help Nancy overcome her substance abuse issues and reunite her with her

children.

      The Division removed the children from Nancy's custody in October 2012

after she failed several drug tests. The Division placed Linda in a resource home

and Tanner with her father.     However, Jeremy lost custody of Tanner the

following month after he tested positive for heroin. Tanner was placed with her

sister in the resource home.




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      In February 2013, the Division removed the children from the resource

home and placed them with an aunt. In September 2014, the children went to

live with Jeremy's mother, C.C. (Carol). In December 2014, Jeremy executed

an identified surrender of his parental rights to Tanner, on the condition that

Carol adopt her. In February 2015, Nancy executed an identified surrender of

her rights to Tanner and Linda, also conditioned on Carol adopting them.

      In September 2015, police arrested Carol and charged her with hindering

the arrest of her son (the police had charged her son with murder). Upon

learning of the pending charge two months later, the Division advised Carol it

could not finalize her adoption of Tanner and Linda until she resolved the

charge. The Division allowed the children to remain with Carol, but began to

explore other placement options for the girls should the need arise; however,

before the charges were dismissed, Carol moved to Pennsylvania. Because the

hindering charge remained pending, Carol could not receive a license to serve

as a resource parent in Pennsylvania. As a result, in October 2016, the Division

removed Tanner and Linda and placed them in a resource home.

      The Division continued to try to assist Nancy and arranged for her to

attend parenting classes and receive substance abuse treatment. Nancy began

treatment at a rehabilitation facility but was discharged because she


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"participated minimally and did not stop smoking PCP." Also during this time,

Jeremy was incarcerated. The earliest he may be released is 2021.

      The Division eventually initiated termination proceedings and the matter

advanced to trial in June 2017. Following trial, the trial judge found in favor of

the Division and terminated the parental rights of both defendants.

      The trial judge determined Nancy's persistent drug use caused harm to the

children and her numerous failures to complete substance abuse treatment

demonstrated the harm would continue. The judge further determined that

Jeremy endangered the safety, health, and development of his daughter by

leading a violent lifestyle, selling drugs, violating probation, and failing to

recognize the importance of his legal problems.       The judge also found the

Division had considered several kinship placements for the girls, although none

of the options investigated proved viable. Further, the Division made significant

efforts to reunite the children with their parents.      These efforts included

visitation   services,   CADC     evaluations,   counseling,   drug    treatment,

psychological evaluations, bonding evaluations, parenting skills classes, and

more. Lastly, the judge determined that terminating the parents' rights would

cause more good than harm because the children had been out of their parents'

custody for more than five years, needed stability, and had a dedicated resource


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parent who made efforts to ensure the children would remain close with the ir

other siblings and families.

                                         II.

      To justify terminating parental rights, the Division must produce clear and

convincing evidence to satisfy the following four statutory prongs of the "best

interests" test:

             (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 Division 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).]




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      These four prongs are neither discrete nor separate, but overlap "to

provide a comprehensive standard that identifies a child's best interests." N.J.

Div. of Youth & Family Servs. v. F.M.,  211 N.J. 420, 448 (2012) (citation

omitted); In re Guardianship of K.H.O.,  161 N.J. 337, 348 (1999).           "The

considerations involved are extremely fact sensitive and require particularized

evidence that address[es] the specific circumstance in the given case." N.J. Div.

of Youth & Family Servs. v. R.G.,  217 N.J. 527, 554 (2014) (citation omitted)

(alteration in original).   The Division must prove by clear and convincing

evidence all four statutory prongs. Ibid. To meet this standard, such evidence

must be "so clear, direct and weighty and convincing as to enable the factfinder

to come to a clear conviction, without hesitancy, of the precise facts in issue."

N.J. Div. of Youth & Family Servs. v. I.S.,  202 N.J. 145, 168 (2010) (quoting

In re Seaman,  133 N.J. 67, 74 (1993)).

      Our review of a trial court's decision in a guardianship case is limited.

R.G.,  217 N.J. at 552. "[T]he trial court's factual findings should be upheld

when supported by adequate, substantial, and credible evidence." Ibid. (citation

omitted). We accord deference to factual findings of the family court given its

"superior ability to gauge the credibility of the witnesses who testify before it




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and because it possesses special expertise in matters related to the family."

F.M.,  211 N.J. at 448.

      We will not overturn a family court's findings unless they went "so wide

of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family

Servs. v. G.L.,  191 N.J. 596, 605 (2007).           However, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." R.G.,  217 N.J. at 552 (quoting

Manalapan Realty, LP v. Manalapan Twp. Comm.,  140 N.J. 366, 378 (1995)).

      On appeal, Nancy argues the Division did not meet its burden for each

prong of the best interests test. Jeremy argues the Division committed several

procedural violations in removing the children from his mother's care and that

the trial judge erred by not allowing a bonding evaluation between Tanner and

Carol.

      After reviewing the record, we find the trial judge's opinion evinced an

adequate appreciation for current legal standards focusing on the importance of

permanency in a child's life and the need for parents to timely resolve drug issues

that keep them from caring for their children.

            In our view, parents dabbling with addictive substances
            must accept the mandate to eliminate all substance
            abuse. Such unabated behavior initiates the foster care
            placement of their children and causes continuing harm

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             by depriving their children of necessary stability and
             permanency….          [T]he delayed reunification,
             accompanied by the concomitant consequence of
             allowing the child's attachment to a resource caregiver
             continues the significant harm to the child….

             [N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.
             Super. 228, 240 (App. Div. 2010) (citations omitted)].

      "We have made it clear that [c]hildren must not languish indefinitely in

foster care while a birth parent attempts to correct the conditions that resulted

in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. L.J.D.,

 428 N.J. Super. 451, 483 (App. Div. 2012) (citation omitted) (alteration in

original).

      A parent's continuing failure to provide a safe and stable home for a child

constitutes harm that can satisfy the first and second prongs of the best interests

test. F.M.,  211 N.J. at 449-52; In re Guardianship of DMH,  161 N.J. 365, 378-

83 (1999); T.S.,  417 N.J. Super. at 244-45. A drug-addicted parent causes harm

when she leaves her child with a surrogate caretaker and lets the child live in

limbo for years.    Even a loving, well-intentioned parent causes harm by

inflicting that psychological insecurity on her child. See K.H.O.,  161 N.J. at
 363 ("We recognize that the continuing inability of the mother to overcome her

own addiction in order to care for her child constitutes endangerment of the

child."). We acknowledge that making the judgment as to how long to give

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a parent to achieve sobriety – calculating the odds that giving her one more

chance to achieve success will yield a better or worse result for the child – must

be made on a case by case basis and is best left to the expertise of Family Part

judges. See F.M.,  211 N.J. at 448-49.

      This case does not involve a parent who engages in the occasional use of

marijuana or an occasional overuse of alcohol. This case involves a parent who

uses PCP, a highly dangerous drug. Nancy tested positive for PCP at least six

times during her involvement with the Division.         She failed to complete

substance abuse treatment despite numerous opportunities and attempts to do so.

Thus, in light of Nancy's continued and unabated use of PCP, we cannot find the

trial judge's determination clearly erroneous.

      The Division also made extensive efforts to keep the children with family.

The Division placed Tanner with her birth father initially. The Division then

placed Tanner and Linda with an aunt and later with Jeremy's mother. The

Division considered other relatives, but they failed to complete paperwork or

did not want to take both girls. Carol never completed the necessary steps to

obtain a new license after the charges against her were dropped. The record

does not reflect any other viable option for the Division except for Tanner and

Linda to continue in their resource home.


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      Lastly, as to the fourth prong, if a parent exposes a child to harm, "has been

unable to remediate the danger to the child, and … 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). The Division offered expert

testimony that the children had developed an "exceptionally high level bond" with

the resource parent. Further, the Division's expert testified the foster parent could

mitigate any harm that might arise from the termination of the biological parents'

rights, partly because the foster parent would allow the children to continue

relationships with their biological families.

      In addition, Linda told the Division case worker she did not want to live with

her mother. While she preferred to live with Carol, she would rather remain with

her foster parent rather than returning to her mother. The record demonstrates

removing the children from the foster parent would have caused the children more

harm than good.

      Jeremy argues the Division failed to properly notify Carol of her right to

appeal the rescission of her license when she moved to Pennsylvania; however,

Jeremy concedes the Division "verbally told [Carol] she could appeal" the

decision. Further, the applicable regulation only requires written notice of the


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right to appeal when "there is a difference of opinion between the resource

family parent and the Division representative regarding the removal." N.J.A.C.

3A:17-2.6. The record does not show any dispute or objection from Carol.

       Jeremy also argues the Division failed to notify the Family Part when

removing the children from Carol's care. In non-emergency situations, the Division

should notify the parties at least thirty days in advance. N.J.A.C. 3A:17-2.3. The

Division must also notify the court and the law guardian. N.J.A.C. 3A:17-2.6. The

record demonstrates the court knew of the removal. Further, Carol informed the

Division of her plan to move to Pennsylvania on October 5, 2016. She completed

her move by October 24, 2016. Therefore, it was impossible for the Division to give

at least thirty days' notice.

       Lastly, Jeremy argues the trial court improperly denied him the ability to

"proffer expert evidence comparing the quality of [Tanner]'s bonding with the

grandmother who raised her … and the resource parent who wishes to adopt her."

Jeremy argues the issue "was not the comparison of [Tanner]'s bonds with [Jeremy

himself]. But the bond between [Tanner] and [Carol] was crucial to weighing

whether the termination was appropriate."

       The trial judge rejected Jeremy's initial request for the comparative bonding

evaluation on the basis of relevancy. This analysis was correct. The issue at trial


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concerned the termination of parental rights – not the placement of the children. Any

concerns over the placement of the children should have been addressed when

placement occurred.

      Even if a bonding evaluation had occurred, the court could not have placed

the children with Carol. Because she moved to Pennsylvania, Carol needed a new

license to serve as resource parent for the children. At the time of trial, she had not

obtained one. We find no reason to alter the Family Part's judgment of guardianship

terminating parental rights.

      Affirmed.




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