NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.A.M.

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                                NOT FOR PUBLICATION WITHOUT THE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-1190-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

S.A.M.,

          Defendant,

and

J.J.C.,

     Defendant-Appellant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.C.,

     a Minor.
____________________________

                    Submitted November 18, 2019 – Decided December 19, 2019

                    Before Judges Messano and Susswein.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Ocean County, Docket
            No. FG-15-0040-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Dianne Glenn, Designated Counsel, on the
            brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Amy B. Klauber, Deputy Attorney
            General, on the brief).

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

PER CURIAM

      Defendant J.J.C. appeals from the Family Part's October 29, 2018 order

that terminated his parental rights to his son, A.C. (Adam), who was born in

2008.1 Defendant argues that the Division of Child Protection and Permanency

(the Division) failed to prove prongs two, three, and four of the statutory best-

interests-of-the-child test,  N.J.S.A. 30:4C-15.1(a). Those portions of the statute

require that the Division prove:



1
  We use initials and fictitious names to preserve the confidentiality of the child
and parties. R. 1:38-3(d)(12). The judgment of guardianship also terminated
the parental rights of Adam's mother, defendant S.A.M. (Samantha). She has
not appealed.
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            (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)(2)-(4).]

The Division's proof as to all must be clear and convincing. N.J. Div. of Youth

& Family Servs. v. F.M.,  211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth &

Family Servs. v. R.D.,  207 N.J. 88, 113 (2011)).

      The Division contends that the evidence at trial was sufficient and urges

us to affirm the judgment. Adam's Law Guardian agrees and, contrary to the

position taken at trial, similarly argues we must affirm. Having consider the

arguments in light of the record and applicable legal standards, we affirm,

substantially for the reasons expressed by the trial judge, Madelin F. Einbinder,

in her oral opinion.


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                                        I.

      On September 22, 2016, the Division received a referral from Adam's

school alleging that he told school personnel Samantha had been arrested. The

school also reported that Adam was always "dirty" when he arrived at school.

Although the Division had received an earlier 2015 referral, its investigation at

that time failed to substantiate allegations that the child's parents used drugs in

his presence. The Division offered evaluation services at the time, but defendant

and Samantha never attended appointments.

      Upon receipt of the school's September 2016 referral, Division workers

investigated the home and found it in deplorable condition, without electricity,

running water and with little food. At the time, Adam was living with Samantha

alone; defendant resided elsewhere. The Division contacted defendant, who

responded to the scene. He refused to take custody of his son, claiming there

was not enough room in the apartment he shared with his girlfriend. The

Division effected a Dodd removal.2

      Defendants supplied the names of relatives with whom Adam might be

placed, however, when contacted by the Division, they all refused to accept


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. 9:6-8.29.


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custody of the child. The Division would not approve placement with two other

relatives based on their experience with the Division, and placed Adam in the

home of a resource family.

      Neither defendant attended the guardianship trial on October 29, 2018.

The Division's caseworker, Emmy Cubbage, testified that defendant and

Samantha regularly attended supervised visitation with Adam, although

defendant missed several visits in fall 2016 because he was incarcerated. Adam

showed affection with both parents and was emotional when he had to leave and

return to his resource family. Courtney Vainojoe from the Division's Adoption

Unit, who was assigned to the case in February 2018, testified that both

defendant and Samantha sometimes appeared to be under the influence during

therapeutic visitations and were resistant to discussing some of the topics

presented by the therapist. As of the time of trial, Adam refused to attend

visitation with his parents, stating he was upset with their behavior.

      Defendant reunited with Samantha shortly after Adam's removal, but later

moved in with his parents. When they sold their home, defendant became

homeless, and, at the time of trial, he and Samantha were living in an abandoned

van. The caseworkers both testified regarding the Division's efforts to assist




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with housing services, but defendant failed to attend scheduled meetings and

otherwise never followed through with social service agencies.

      Defendant tested positive for cocaine at his initial urine screening in

October 2016, but he successfully attended intensive outpatient treatment and

made progress treating his addiction. Urine screens between November 2016

and July 2017 were negative, but, in August 2017, defendant tested positive for

suboxone. He had no prescription for the drug. His probation officer and

Division staff noted defendant frequently appeared to be under the influence.

Although defendant again began treatment, his initial compliance soon faltered.

He failed to complete the intensive outpatient program, refused to re-engage in

any other referrals and refused to provide additional urine screens or submit to

hair follicle testing.

      Adam manifested significant health problems and allergies. His school

provided him an individualized educational plan to address his learning

difficulties and ADHD. He also exhibited serious behavioral problems. At the

time of trial, Adam was in his fourth foster home since removal, this time with

a maternal great aunt, T.F. She remained willing to care for Adam but did not

wish to adopt him or participate in kinship legal guardianship (KLG). Even after




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Adam was placed with T.F., the Division continued to explore other relatives as

possible placement alternatives and potential pre-adoptive homes.

      The Division's expert, Dr. David Brandwein, a forensic psychologist,

evaluated defendant and conducted a bonding evaluation with Adam and his

parents. Dr. Brandwein diagnosed defendant with "opioid use disorder, severe;

cocaine use disorder, moderate; paranoid, antisocial, and narcissistic personality

patterns; and inadequate housing." The doctor concluded that while defendant

loved his son, his obvious drug use, failure to remain sober and continued denial

of his problems made it unlikely he would be able to independently parent the

child in the foreseeable future.

      Dr. Brandwein testified that Adam saw defendant and Samantha as his

parents and there was a definite bond between them. However, the doctor

opined that the bond was not secure. Because defendant had been "in and out

of [Adam's] life" for the prior two years, the absences caused that bond to

weaken. Dr. Brandwein acknowledged that he might have recommended giving

the relationship more time if defendant re-engaged in treatment. However,

because Adam had been in foster care for a long time, the doctor opined within

a reasonable degree of psychological certainty that termination of defendant's

parental rights would not do more harm than good to Adam. He admitted there


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was no certainty that Adam would find a permanent home, but Dr. Brandwein

believed that Adam faced greater harm by waiting for his parents who were not

as invested in him as he was in them.

      Neither defendant called any witnesses nor presented any evidence.

Adam's Law Guardian addressed the judge and explained that based on

conversations with the child, Adam's adamant desire was to maintain an intact

relationship with his parents.

      In an oral opinion that immediately followed trial, and which we discuss

more fully below, Judge Einbinder concluded the Division had carried its burden

of proof as to all four prongs of  N.J.S.A. 30:4C-15.1(a) and entered the judgment

of guardianship. This appeal followed.

                                        II.

      Under our standard of review, we must uphold the trial court's findings if

"supported by adequate, substantial, and credible evidence." N.J. Div. of Youth

& Family Servs. v. R.G.,  217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth &

Family Servs. v. E.P.,  196 N.J. 88, 104 (2008)). We defer to the judge's factual

findings because she had "the opportunity to make first-hand credibility

judgments about the witnesses . . . [and] ha[d] a 'feel of the case' that can never

be realized by a review of the cold record." E.P.,  196 N.J. at 104 (quoting N.J.


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Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 293 (2007)). We accord

even greater deference to the Family Part's factual findings because of its

"special jurisdiction and expertise in family matters[.]" N.J. Div. of Youth &

Family Servs. v. M.C. III,  201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare,

 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so

'clearly mistaken' or 'wide of the mark' should an appellate court intervene and

make its own findings to ensure that there is not a denial of justice." E.P.,  196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L.,  191 N.J. 596,

605 (2007)).

      "The focus of a termination-of-parental-rights hearing is the best interests

of the child." F.M.,  211 N.J. at 447 (citing R.D.,  207 N.J. at 110). The four

statutory prongs "are neither discrete nor separate. They overlap to provide a

composite picture of what may be necessary to advance the best interests of the

child[]." M.M.,  189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v.

F.M.,  375 N.J. Super. 235, 258 (App. Div. 2005)).

                                            A.

      Defendant argues he consistently complied with substance abuse

treatment and therefore displayed a willingness to eliminate any harm caused to




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Adam. This contention is supported by the Division's failure to produce any

positive drug screens after he left the last treatment program in 2018.

      The second prong "inquiry centers on whether the parent is able to remove

the danger facing the child." F.M.,  211 N.J. at 451 (citing In re Guardianship of

K.H.O.,  161 N.J. 337, 352 (1999)). This prong may be proven by "indications

of parental dereliction and irresponsibility, such as the parent's continued or

recurrent drug abuse, [and] the inability to provide a stable and protective

home[.]" K.H.O.,  161 N.J. at 353. "Prong two may also be satisfied if 'the child

will suffer substantially from a lack of . . . a permanent placement and from the

disruption of [the] bond with foster parents.'" F.M.,  211 N.J. at 451 (quoting

K.H.O.,  161 N.J. at 363).

      Judge Einbinder found that both defendant and Samantha were "unwilling

or unable to eliminate the harm" Adam faced. She noted that defendant was

"homeless" and had "no[t] complied consistently with substance abuse

treatment." She cited Dr. Brandwein's unopposed expert opinion that Adam

would "continue to be endangered by the parental relationship." We note that

the lack of any empirical proof of defendant's continued use or abstinence after

leaving the last program in 2018 is the result of his refusal to submit to further

testing.


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      There was ample, credible evidence in the record to support the judge's

conclusion, and we reject defendant's challenge to the sufficiency of the prong

two proof.

                                       B.

      Defendant's argument regarding prong three is limited.        He does not

contend the Division failed to provide reasonable services toward reunification,

but rather, defendant argues there was a viable placement option for Adam with

a relative, C.F., Samantha's sister. Defendant claims the Division failed to

reasonably consider her as a placement resource.

      Prong three requires the court to "consider[] alternatives to termination of

parental rights[.]"  N.J.S.A. 30:4C-15.1(a)(3). Such alternatives may include

placement of the child with a relative caretaker,  N.J.S.A. 30:4C-12.1(a), or the

establishment of KLG, N.J. Div. of Youth & Family Servs. v. L.L.,  201 N.J.
 210, 222 (2010). The Division has an obligation under  N.J.S.A. 30:4C-12.1(a)

to initiate a search for relatives who may be willing and able to provide care and

support for a child. N.J. Div. of Youth & Family Servs. v. J.S.,  433 N.J. Super.
 69, 81 (App. Div. 2013). Defendant's argument in this regard, however, lacks

sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E).




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      The testimony at trial was that shortly after the Division removed Adam,

C.F. expressed an interest in caring for him. The Division cleared C.F. for a

resource placement, however, at the time, Adam was doing well in his foster

placement and Samantha requested he not be moved. C.F. agreed that Adam

should not be placed in her home at that time. After the Division placed Adam

with T.F. shortly before trial, it again contacted C.F. to ask if she was willing to

take the child. She stated she was unable to do so and subsequently refused to

return calls or attend appointments. The Division ruled her out as a placement.

      Additionally, Judge Einbinder found that T.F. told the Division that she

was not interested in KLG or adoption. The proof as to prong three was

sufficient.

                                        C.

      The fourth prong of the statute requires the court to determine that

termination "will not do more harm than good."  N.J.S.A. 30:4C-15.1(a)(4). It

serves as a "'fail-safe' inquiry guarding against an inappropriate or premature

termination of parental rights." F.M.,  211 N.J. at 453 (quoting G.L.,  191 N.J. at
 609). "The question ultimately is not whether a biological mother or father is a

worthy parent, but whether a child's interest will best be served by completely

terminating the child's relationship with th[e] parent." E.P.,  196 N.J. at 108.


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Typically, "the [Division] should offer testimony of a well[-]qualified expert

who has had full opportunity to make a comprehensive, objective, and informed

evaluation of the child's relationship with both the natural parents and the foster

parents." F.M.,  211 N.J. at 453 (quoting M.M.,  189 N.J. at 281).

      Judges face exquisitely difficult decisions when, as here, the child has

been through several resource family placements and resides at the time of trial

with a resource parent unwilling to adopt him. As the Court has said:

            [C]ourts have recognized that terminating parental
            rights without any compensating benefit, such as
            adoption, may do great harm to a child. Such harm may
            occur when a child is cycled through multiple foster
            homes after a parent's rights are severed. Indeed, the
            detriment may be greater than keeping the parent-child
            relationship intact since the child's psychological and
            emotional bond to the parent may have been broken
            with nothing substituted in its place. We know that
            termination of parental rights does not always result in
            permanent placement of the child and that too many
            children freed up for adoption do not in the end find
            permanent homes.

            [E.P.,  196 N.J. at 109 (quotations and citations
            omitted).]

      Defendant argues that Adam has a significant emotional relationship with

him, and the judge should have conducted an in camera interview of Adam to

consider his wishes. However, the judge asked the Law Guardian if she intended

to call the child as a witness, "or have him come in and speak with the Court[.]"

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She specifically declined. We refuse to consider an issue claimed to be error

when the court specifically adopted a position at counsel's urging. See M.C. III,

 201 N.J. at 340 (applying invited error doctrine).

      Because of Adam's behavioral problems, defendant posits that the

possibility of adoption is remote, consigning his son to a revolving door of

resource home placements. Judge Einbinder was clearly concerned that the

Division had not yet secured a pre-adoptive placement for Adam. Nevertheless,

relying largely on Dr. Brandwein's expert opinion, she concluded termination

"would not do more harm than good[.]" The judge differentiated the facts in

this case from those presented in E.P., noting in that case, the child had an

intense bond with her mother, the defendant, whereas here, because of

defendant's absence and incarceration, the bond between Adam and his father

was less strong than previously.

      We also think this case presents other facts that compel a different result

than in E.P. In E.P., the nearly thirteen-year-old child was in her seventh foster

placement at the time of trial with "no permanent placement . . . in sight."  196 N.J. at 109. Here, the Division's caseworker testified that a pre-adoptive home

was going to be evaluated the week after trial. We have no idea what the results

of that were. Nevertheless, the point is that the possibility of permanency for


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Adam is unlike that faced by the child in E.P., whose "slim hope of adoption"

appeared as "elusive" as ever. Ibid.3

       Affirmed.




3
   The Law Guardian's position on appeal, as noted, is different from that
expressed at trial. Although no motion to supplement the record was ever made,
the Law Guardian's appellate brief states in a footnote that at the time the brief
was filed, Adam was "placed in a pre-adoptive home where he wishes to remain,
and therefore now supports the affirmance of the judgment of guardianship."
The footnote is not critical to our decision.
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