NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.W. and P.G.C IN THE MATTER OF THE GUARDIANSHIP OF C.C a Minor

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                                 NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5219-17T2
                                                                     A-5230-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.W. and P.G.C.,

     Defendants-Appellants.
_____________________________

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

     a Minor.
_____________________________

                   Submitted September 23, 2019 – Decided November 1, 2019

                   Before Judges Ostrer, Vernoia and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Sussex County,
                   Docket No. FG-19-0025-17.
            Joseph E. Krakora, Public Defender, attorney for
            appellant P.G.C. (Louis W. Skinner, Designated
            Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant A.W. (Ruth Ann Harrigan, Designated
            Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason Wade Rockwell, Assistant Attorney
            General, of counsel; Victoria Almeida Galinski, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Olivia Belfatto Crisp, Assistant
            Deputy Public Defender, on the brief).

PER CURIAM

      In these consolidated cases, A.W. (Ashley) and P.G.C. (Patrick)1 appeal

from the Family Part's June 27, 2018 order terminating their parental rights to

their son, C.C. (Craig), then just shy of seven years old. The order freed Craig

for adoption by his foster parents, with whom Craig had lived for over two-and-

a-half years.

      Ashley and Patrick contend the Division of Child Protection and

Permanency failed to establish any of the four prongs of the best interests test.

See  N.J.S.A. 30:4C-15.1(a). Ashley also contends the court committed plain


1
  For the reader's convenience, and to protect the child's privacy, we refer to the
parties and child by pseudonymous first names.
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error in considering hearsay embedded in various medical and treatment records;

and her trial counsel was ineffective in failing to object. The Law Guardian

joins the Division in supporting the judgment. We affirm substantially for the

reasons set forth by Judge Michael C. Gaus in his comprehensive written

opinion.

      Judge Gaus found the Division proved, by clear and convincing evidence,

all four prongs of N.J.S.A. 30:4C-15.1(a):

            (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.




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      The judge relied on the Division witnesses: Mark Singer, Ph.D., who

conducted psychological and bonding evaluations of the parents, and a bonding

evaluation of the foster parents; Preston Gagg, a Division caseworker who

worked with defendants from late 2014 until late 2016; Division adoption and

training supervisor Kelly Weymer, who worked with defendants after the

guardianship complaint was filed in November 2016; and two forensic

toxicologists, who testified about defendants' positive test results for substance

abuse. Neither parent testified or presented witnesses. Patrick did not appear

for trial. Ashley attended part of the trial, but appeared to be under the influence

of drugs.

      We find ample support for, and presume the reader's familiarity with, the

detailed findings of fact in Judge Gaus's eighty-three page opinion. In summary,

Judge Gaus credited the Division's witnesses and found that neither parent was

capable of safely and effectively parenting Craig. The court recognized that

Craig's autism presented a greater than usual need for consistent and stable

parenting, to assure his emotional and cognitive development.            The court

described Craig's improved progress under the consistent care of his foster

parents.




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      The court found that Ashley's incapacity arose from her persistent mental

illness, and abuse of prescription and illicit drugs; her inability to consistently

and successfully attend therapy or treatment for either, as offered by the

Division; and her continual denial of the shortcomings that led to Craig's

removal. She failed to provide a stable home; failed to assure Craig's regular

attendance at school before the child was removed from the home; and was

inconsistent with parenting time after he was removed.

      Much like Ashley, Patrick's incapacity to parent arose from his abuse of

alcohol and of drugs, often obtained from Ashley; his failure to consistently and

successfully attend treatment as offered by the Division; and his minimization

of his and Ashley's shortcomings. Patrick failed to assume responsibility for

Craig's schooling and other needs when Ashley did not do so. He did not

appreciate Craig's special needs. He attended parenting time inconsistently and

was unable to provide a stable home for his son.

      Relying on Dr. Singer's evaluations, Judge Gaus concluded that Craig had

formed a strong emotional bond with his foster parents, whom he viewed as

mother and father. If separated from his foster parents, Craig would suffer

enduring harm that defendants could not mitigate. By contrast, the foster parents




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could help Craig overcome any harm he would suffer from the loss of his

attachment to defendants.

      We exercise limited review of the trial court's decision.             In re

Guardianship of J.N.H.,  172 N.J. 440, 472 (2002). We defer to the trial court's

fact-findings, and its exercise of expertise in family matters. N.J. Div. of Youth

& Family Servs. v. F.M.,  211 N.J. 420, 448 (2012); Cesare v. Cesare,  154 N.J.
 394, 411-13 (1998). We review legal issues de novo. See Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      "We will not disturb the family court's decision to terminate parental

rights when there is substantial credible evidence in the record to support the

court's findings." N.J. Div. of Youth & Family Servs. v. E.P.,  196 N.J. 88, 104

(2008).   Defendants essentially challenge the factual basis for the court's

determinations. However, after reviewing the record and applicable law in light

of the arguments advanced on appeal, we discern no basis to disturb the court's

findings, which were supported by substantial credible evidence.

      As for prongs one and two – which are interrelated, In re Guardianship of

DMH,  161 N.J. 365, 378-79 (1999) – defendants misplace reliance on the fact

that Craig never suffered physical harm while in their care; he remained attached

to his parents; and they interacted positively with them during visits. "Courts


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need not wait to act until a child is actually irreparably impaired by parental

inattention or neglect." Id. at 383. It is sufficient to prove the risk or danger of

harm. N.J. Div. of Youth & Family Servs. v. A.G.,  344 N.J. Super. 418, 440

(App. Div. 2001). "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." In re

Guardianship of K.L.F.,  129 N.J. 32, 44 (1992). Judge Gaus found, based on

substantial evidence in the record, that defendants' parental shortcomings –

including their persistent substance abuse and her untreated mental illness –

placed Craig at substantial risk of developmental harm.

      Defendants minimize or excuse their failure to complete treatment

programs, and insist they were able and willing to correct any harms to Craig.

However, there was ample evidence to support the court's conclusion, based on

defendants' inconsistent rehabilitation and treatment efforts, that they were

unable or unwilling to provide Craig a safe and stable home; and separating

Craig from his foster parents would cause him great emotional and

psychological harm. See e.g. F.M.,  211 N.J. at 450-51 (stating that untreated

mental illness that threatens harm to the child may disqualify a parent from

raising a child); K.H.O.,  161 N.J. at 353 (stating "the second prong may be met


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by indications of parental dereliction and irresponsibility, such as the parent's

continued or recurrent drug abuse, the inability to provide a stable and protective

home, [and] the withholding of parental attention and care"); A.G.,  344 N.J.

Super. at 438 (stating that blamelessness of a mentally ill parent "is not sufficient

to tip the scale in [his or her] favor" if the illness impairs the ability to parent).

      Regarding prong three, defendants also contend the Division failed to

provide them with adequate or sufficiently tailored treatment programs. "The

diligence of [the Division's] efforts on behalf of a parent is not measured by their

success," DMH,  161 N.J. at 393, particularly where the lack of success results

from a parent's "failure to cooperate or follow through." N.J. Div. of Youth &

Family Servs. v. C.S.,  367 N.J. Super. 76, 119 (App. Div. 2004). The record

evidence demonstrates that the Division provided services in light of defendants'

individual and sometimes changing needs.

      Also lacking merit is Ashley's contention that the Division violated her

rights under the Americans with Disabilities Act.           The Division provided

services to Ashley to assist her in overcoming her disabilities, or to enable her

to parent in spite of them. The ADA does not excuse Ashley's lack of success,

as that "would improperly elevate the rights of the parent above those of the

child." A.G.,  344 N.J. Super. at 442 (citations omitted). In addition, we discern


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no error in the court's determination that the Division considered alternatives to

termination. Craig's foster parents expressed their unequivocal commitment to

adopt Craig as early as November 2016. The Division was not required to

explore kinship legal guardianship (KLG) with them. See N.J. Div. of Youth &

Family Servs. v. P.P.,  180 N.J. 494, 512-13 (2004) (stating "when the

permanency provided by adoption is available, kinship legal guardianship

cannot be used as a defense to termination of parental rights").

      We also discern no error in Judge Gaus's finding that the Division met

prong four. The court recognized that Craig remained attached to his parents.

Yet, the fourth prong does not require a "showing that no harm will befall the

child as a result of the severing of biological ties." K.H.O.,  161 N.J. at 355.

Substantial evidence in the record, including Dr. Singer's opinion, supported the

court's conclusion that termination of parental rights would not do more harm

than good.

      Finally, we reject Ashley's assertion of evidentiary error and ineffective

assistance of counsel. She concedes that her records from Morristown Medical

Center, and from two physicians, were admitted without objection.            Even

assuming for argument's sake a well-founded objection was available, in the

absence of one, the court as fact-finder was entitled to give the evidence


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appropriate evidential weight, recognizing whatever inherent weaknesses the

hearsay may have. N.J. Div. of Child Protection and Permanency v. J.D.,  447 N.J. Super. 337, 349 (App. Div. 2016). Under those circumstances, Ashley

"faces an especially high hurdle . . . to establish that the admission of such

evidence constitutes 'plain error.'" Ibid.

      We are not convinced plain error is present here.          Ashley has not

demonstrated that admission of the hospital and physicians' records was "clearly

capable of producing an unjust result." R. 2:10-2. There was ample evidence,

outside of the hospital records, of Ashley's mental illness and pain medicine use,

their negative impact on her parenting, and her failure to treat consistently.

Without addressing Ashley's claim of deficient performance, her claim of

ineffective assistance of counsel must also fail, as there was no reasonable

probability that the result of the proceeding would have been different had

Ashley's counsel interposed an objection. See N.J. Div. of Youth & Family

Servs. v. B.R.,  192 N.J. 301, 308-09 (2007) (adopting standard under Strickland

v. Washington,  466 U.S. 668, 694 (1984), which requires a defendant to show

deficient performance and "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different") .




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      To the extent not addressed, defendants' remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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