NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.R.

 

(NOTE: The status of this decision is Published.)

                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2518-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

L.R.,

          Defendant-Appellant,

and

S.B.,

     Defendant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF B.R.,

     a Minor.
__________________________

                    Submitted November 4, 2019 – Decided December 11, 2019

                    Before Judges Messano and Susswein.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Hudson County,
            Docket No. FG-09-0199-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Lauren Derasmo, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Donna Sue Arons, Assistant Attorney
            General, of counsel; Amanda D. Barba, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Linda Vele Alexander, Designated
            Counsel, on the brief).

PER CURIAM

      The Family Part judge terminated the parental rights of defendant L.R.,

mother of B.R. (Barbara), born in May 2016.1 Defendant contends the Division

of Child Protection and Permanency (the Division) failed to adduce clear and

convincing evidence at the guardianship trial as to all four prongs of the

statutory best-interests-of-the-child test,  N.J.S.A. 30:4C-15.1(a). The Division




1
  The judgment of guardianship also terminated the parental rights of Barbara's
father, S.B., who did not appear at trial and has not appealed. We use initials
and fictitious names to protect the privacy of the parties and child. R. 1:38-
3(d)(12).
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contends otherwise and urges us to affirm the judgment.             Barbara's Law

Guardian likewise argues that the evidence was sufficient, and we should affirm.

      After carefully reviewing the evidence at trial, we affirm.

                                       I.

      A Jersey City hospital made a referral to the Division in the early morning

hours of June 30, 2017, after police found defendant intoxicated, walking

barefoot and screaming in the middle of the street while holding one-year-old

Barbara. At the time, defendant and the child were living in a shelter in Newark

because defendant had been terminated from a transitional housing program due

to non-compliance with its rules. The Division effected an emergency removal

of Barbara.

      Defendant offered S.P., the aunt of her paramour at the time, as a

placement resource, however, after inspecting both S.P.'s current and future

residence, the Division concluded neither was appropriate.           The Division

referred defendant for services, including substance abuse counseling, housing

assistance programs, and parenting classes. Defendant was discharged from the

substance abuse program for non-compliance and after testing positive for

alcohol. Defendant continued to test positive for alcohol consumption in the

ensuing months, and she missed several appointments for evaluations.


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      In June 2018, the court ordered the Division to evaluate F.M., Barbara's

paternal great-grandfather, as a placement resource, despite his previous refusal.

F.M. was already caring for defendant's two older children without Division

assistance. The Division ruled out F.M. after he indicated again that he was

unable to care for a third child. In July 2018, the Division filed this guardianship

complaint.

      In October, defendant was again terminated from an outpatient alcohol

treatment program after testing positive and missing more than half of her

scheduled sessions in September. The Division unsuccessfully attempted to

place defendant in an inpatient program. On October 28, 2018, defendant gave

birth to another child. 2

      At the guardianship trial that commenced in early January 2019, the

Division called Dr. Gerard A. Figurelli as its expert, as well as its caseworker,

Betty Mata, and M.M., Barbara's resource parent, who wished to adopt her.

Defendant testified on her own behalf.

      Dr. Figurelli described the psychological evaluations he performed on

defendant. He diagnosed her with substance abuse disorder and noted that


2
  The record does not disclose what if any immediate action the Division took
after the birth of this baby girl. However, it was revealed at trial that she was in
the custody of her father.
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defendant showed no signs of improvement over the course of the litigation. He

stated that defendant continued to minimize or deny her problem, and Dr.

Figurelli opined that defendant would not be able to successfully parent Barbara

in the reasonably foreseeable future.

      Dr. Figurelli also testified regarding the bonding evaluations he performed

with defendant and Barbara, and M.M. and Barbara. He characterized the bond

between L.R. and Barbara as "positive, but limited," stating the relationship was

best characterized as an attachment rather than a bond, because "a bond is . . .

more fully developed." Dr. Figurelli described the bond between M.M. and

Barbara as a "developing significant positive reciprocal" bond and opined that

M.M. was Barbara's central parental attachment which is "synonymous with her

psychological parent." He opined that Barbara was at risk of "significant harm"

if removed from M.M.'s care, and her needs were best served by M.M.'s

adoption.

      Mata detailed the history of the Division's involvement with defendant,

her inconsistent attendance record at referrals and her supervised visitation with

Barbara. M.M. testified as to the strong bond she had developed with the child

during the one and one-half year Barbara spent in placement with her, and M.M.

expressed her desire to adopt Barbara.


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      Defendant testified that she experienced mixed success with the programs

to which the Division referred her, in part, because of conflicts with her work

schedule. She highlighted her participation in outpatient treatment, although

she believed she required inpatient substance abuse counseling. Defendant

described the unsuccessful attempts she made at trying to enroll in such a

program, but admitted she had not called any inpatient program to see if there

were open beds since October 2018. At the time of trial, defendant resided with

her stepmother and believed the apartment was large enough to accommodate

Barbara. Defendant was no longer working full-time but had a "contract" with

a temporary employment agency and was able to "pick up a shift."

      For reasons stated in her comprehensive written opinion, and which we

discuss below, Judge Bernadette N. DeCastro concluded the Division had

proven all four prongs of  N.J.S.A. 30:4C-15.1(a). She entered the judgment of

guardianship and 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). We defer to the judge's

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


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

be realized by a review of the cold record." N.J. Div. of Youth & Family Servs.

v. E.P.,  196 N.J. 88, 104 (2008) (quoting N.J. 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." 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, 110

(2011)). 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 children." 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)).




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      Pursuant to the first prong of the statute, the Division must establish "[t]he

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 Division

must prove harm that 'threatens the child's health and will likely have continuing

deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. A.L.,

 213 N.J. 1, 25 (2013) (quoting In re Guardianship of K.H.O.,  161 N.J. 337, 352

(1999)). The Division need not "wait 'until a child is actually irreparably

impaired by parental inattention or neglect.'" F.M.,  211 N.J. at 449 (quoting In

re Guardianship of D.M.H.,  161 N.J. 365, 383 (1999)).

      Defendant contends that her temporary lack of stable housing was

insufficient to establish harm to Barbara under prong one.           However, the

argument fails to address the full weight of Judge DeCastro's findings, all of

which were amply supported by the evidence.

      For example, Judge DeCastro credited Dr. Figurelli's testimony and found

that defendant failed to internalize the cause of her substance abuse, and because

she had no "insight into the cause, she will not be ready to sustain sobriety."

The judge noted that defendant's failures to maintain employment to support

herself and Barbara "add[ed] to the harm," and caused Barbara to continue to

reside in foster care for more than one-half of her young life. This evidence


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coupled with the actual circumstances that led to Barbara's removal in the first

place provided clear and convincing evidence of actual harm and future potential

harm to the child.

      The second prong of the best-interest test requires the Division to

demonstrate that "[t]he parent is unwilling or unable to eliminate the harm facing

the child . . . and the delay in permanent placement will add to the harm."

 N.J.S.A. 30:4C-15.1(a)(2). "[T]he inquiry centers on whether the parent is able

to remove the danger facing the child." F.M.,  211 N.J. at 451 (citing K.H.O.,

 161 N.J. at 352).     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 (alterations in original)

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

      Defendant again argues that Judge DeCastro focused solely on defendant's

housing situation. She contends the trial evidence did not support the judge's

conclusion that defendant was unable to maintain sobriety for more than "a few

weeks."


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      However, the judge credited Dr. Figurelli's opinion that defendant was

unlikely to become a fit parent in the near future and found any further delay in

placement would additionally harm Barbara. The judge noted that defendant

failed to complete any outpatient treatment program and admitted imbibing

alcohol only a few weeks before trial. The proof as to prong two was clear and

convincing.

       N.J.S.A. 30:4C-15.1(a)(3) requires the Division make "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 to "consider[] alternatives

to termination of parental rights[.]" Defendant's argument as to prong three is

two-fold. She contends the Division did not make reasonable efforts toward

reunification because it failed to place defendant in a court-ordered inpatient

treatment program. Defendant also argues that the Division failed to consider

Barbara's placement with a family member. We reject both aspects of the

argument.

      "Experience tells us that even [the Division's] best efforts may not be

sufficient to salvage a parental relationship." F.M.,  211 N.J. at 452. Moreover,

even if the Division provides deficient services to a parent, reversal is not

necessarily warranted, "because the best interests of the child controls" the


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ultimate determination. N.J. Div. of Youth & Family Servs. v. F.H.,  389 N.J.

Super. 576, 621 (App. Div. 2007).

      Here, Judge DeCastro credited Mata's testimony regarding the services

provided to defendant and the Division's efforts to place defendant in an

inpatient substance abuse program. The judge specifically found that "[d]espite

diligent attempts . . . to secure an inpatient program for [defendant], the Division

was unable to do so because the programs did not have availability." That

finding is amply supported by the record evidence.

      Judge DeCastro also found that the Division considered placement with

two relatives, S.P. and F.M., both of whom were ruled out. Defendant claims

the Division's assessment of S.P.'s home as unsuitable is not supported by the

record, but we disagree. The documentary evidence at trial demonstrates when

the Division visited S.P.'s home immediately after Barbara's removal, S.P. stated

she was moving in two days.          When the Division inspected S.P.'s new

accommodations, it found they lacked a functioning kitchen and bathroom,

something the caseworker observed again when she revisited a few days later.

In addition, defendant was residing with S.P. as of August 2017, which made

the apartment an unsuitable resource placement.




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      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.

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).

      Defendant claims Judge DeCastro ignored the record evidence

demonstrating a strong bond between her and Barbara, including the positive

visitations and the child's demeanor. Defendant argues Dr. Figurelli's testimony

regarding the bonding between her and Barbara was "contradictory and lacked

credibility."

      Judge DeCastro noted that the Division's expert testimony was unrebutted

at trial, and she credited Dr. Figurelli's opinions. She found that defendant was

not likely to be able to successfully parent Barbara "now or in the foreseeable


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future." She also concluded that rupturing the bond Barbara developed with

M.M. would cause the child harm, whereas any harm suffered from terminating

defendant's parental rights could be mitigated by M.M.'s adoption. We defer to

the judge's credibility findings since she had the opportunity to observe the

witnesses and weigh their testimony in the context of the entire case. E.P.,  196 N.J. at 104.

      Affirmed.




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