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

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1736-18T3

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

Plaintiff-Respondent,

L.M. (Deceased),

Defendant,

and

F.V.,

Defendant-Appellant.
______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.V.,

a minor.
______________________________

Submitted January 6, 2020 – Decided February 26, 2020

Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0235-18.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Beryl Vurnen Foster-Andres, Designated
Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Ellen L. Buckwalter, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Linda Vele Alexander,
Designated Counsel, on the brief).

PER CURIAM

Defendant, F.V. (Fred), 1 appeals from the Family Part's November 30,

2018 order terminating parental rights to his only child, J.V. (John), then six

years old.2 In addition to having a history of criminal activity and violence, Fred

suffers from unresolved mental health and substance abuse issues. He has be en

incarcerated for all but two months of his son's life.

1
For the reader's convenience, we use pseudonyms for defendant, his son, his
son's deceased mother, and his son's aunt.
2
The trial court issued a supplemental written opinion on February 25, 2019.
A-1736-18T3
2
Judge Radames Velazquez convened a two-day evidentiary hearing after

which he ruled that the Division of Child Protection and Permanency (Division)

proved the four prongs of the best-interests-of-the-child test, N.J.S.A. 30:4C-

15.1(a), by clear and convincing evidence. On appeal, defendant challenges the

trial court's conclusions with respect to all four prongs. He contends, for

example, that he never harmed his son, was not given sufficient parenting time,

and will be released from prison soon. The Division and John's Law Guardian

contend that the evidence at trial was sufficient and urge us to affirm the

judgment.

After carefully reviewing the record in view of the parties' arguments,

applicable legal principles, and standard of review, we affirm the termination of

Fred's parental rights substantially for the reasons set forth in Judge Velazquez's

initial and supplemental written opinions. Tragically, John's mother, L.M.

(Lynne), is deceased. The trial court's order freed John for adoption by his

maternal aunt, S.M. (Susan). She was a frequent presence in John's life prior to

Lynne's untimely death and has since stepped in to serve as her nephew's

caregiver. The trial court's decision to terminate Fred's parental rights, allowing

for John's adoption by his aunt, is decidedly in the child's best interest.

A-1736-18T3
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Fred raises the following contentions for our consideration:

POINT I

DCPP FAILED TO PROVE THAT TERMINATION
OF PARENTAL RIGHTS WOULD BE IN [JOHN'S]
BEST INTEREST BECAUSE [FRED] NEVER
HARMED HIS SON OR PLACED HIM AT RISK OF
HARM, [JOHN] WAS NOT PRESENT FOR ANY
SUBSTANCE USE OR DOMESTIC VIOLENCE, IT
HAS NOT BEEN SHOWN THAT [FRED] HAS ANY
MENTAL HEALTH ISSUES THAT WOULD RISK
HARM TO HIS SON, [FRED] IS ENROLLED IN
SEVERAL SERVICES, AND THE FATHER AND
SON HAVE THE ABILITY TO BOND UPON
[FRED'S] RELEASE.

A. DCPP HAS FAILED TO PROVE THE
FIRST PRONG OF THE BEST
INTERESTS TEST BECAUSE [FRED]
HAS NEVER HARMED HIS SON OR
PLACED HIM AT A RISK OF HARM.

B. DCPP HAS FAILED TO SATISFY
THE SECOND PRONG OF THE BEST
INTERESTS TEST BECAUSE [FRED]
WILL BE QUALIFIED FOR PAROLE
WITHIN A YEAR, HE IS
PARTICIPATING IN A NUMBER OF
SERVICES, AND IT HAS NOT BEEN
PROVEN THAT HE REQUIRES
PARENTING CLASSES.

C. DCPP HAS FAILED TO MEET THE
THRESHOLD FOR THE THIRD PRONG
STANDARD BECAUSE [FRED] WAS
NOT OFFERED SUFFICIENT
PARENTING TIME WITH HIS SON.

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D. DCPP FAILED TO PROVE THE
FOURTH PRONG OF THE BEST
INTERESTS TEST BECAUSE THE
LACK OF APPROPRIATE PARENTING
TIME HINDERED [FRED'S] ABILITY
TO BOND WITH HIS SON.

II.

The pertinent facts leading to the parental termination complaint are set

forth comprehensively in Judge Velazquez's written opinion. We presume the

parties are familiar with that opinion, so we summarize the facts in this opinion,

highlighting those we deem to be particularly relevant to the issues raised in this

appeal.

The Division first became involved with the family in December 2011,

when it received a referral from Jersey City Medical Center. Lynne, who was

pregnant with John, sought medical treatment for stab wounds to her back, neck,

and arm. She reported that Fred had attacked her with a knife in the presence of

one of her three daughters. The Division investigated and substantiated a

finding of neglect against Fred. Shortly thereafter, Fred was arrested and

charged with aggravated assault.

Fred was incarcerated when John was born in August 2012. In December

2012, he was convicted of receiving stolen property, possession of a weapon for

an unlawful purpose, terroristic threats, resisting arrest, and distribution of a

A-1736-18T3
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controlled dangerous substance. He was sentenced to five years in prison and

was released around February 2017.

Not long after his release, Lynne obtained a temporary restraining order

against Fred after he tried to strangle her. During the Division's investigation

into the incident, one of Lynne's other three children reported that Fred had

threatened to kill Lynne. John confirmed that he saw Fred hitting Lynne. The

Division did not seek a finding of abuse and neglect against Fred in relation to

John but did substantiate abuse and neglect between Fred and one of Lynne's

daughters.

Regrettably, in early April 2017, Lynne died from complications related

to a heart condition. The following day, Fred was incarcerated for threatening

to kill Lynne's sister, Susan. The Division executed a Dodd 3 removal of John

and placed him with Susan. John has remained in Susan's care since then.

In March 2018, Fred pled guilty to various crimes including terroristic

threats, resisting arrest, and eluding. He was sentenced to five years in prison.

The following month he also pled guilty to simple assault. He is currently

incarcerated and will not be eligible for parole until April 2020.

3
A Dodd removal is an emergent removal of a child without a court order
pursuant to N.J.S.A. 9:6-8.21 to -8.82 (the Dodd Act). N.J. Div. of Youth &
Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
A-1736-18T3
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At the guardianship trial, Nitzana Silverman, a Division adoption

caseworker, testified that John has a loving relationship with Susan. Prior to the

Dodd removal, John spent weekends with her. He is comfortable in Susan's

home, and she has been attentive to his needs. The Division has no concerns

regarding Susan's ability to care for John, and she has indicated that she wants

to adopt him.

Joel S. Federbush, M.D., a psychiatrist, testified that Fred had an impulse

control disorder. At the time of the evaluation, Fred was taking numerous

psychiatric medications. During his incarceration, Fred received diagnoses

related to his abuse of PCP, cocaine, alcohol, and hallucinogens. He also was

diagnosed with mental health disorders, including schizophrenia,

schizoaffective disorder, and impulsivity.

Federbush expressed concern about Fred's ability to remain substance free

given that he previously relapsed immediately upon release from prison.

Federbush also noted in his testimony that Fred did not set forth a spec ific

parenting plan. Instead, he told Federbush that he would figure things out as

they happen and do what was necessary.

Federbush opined that Fred's unresolved anger management and substance

abuse issues would expose John to a risk of harm. Federbush thus concluded

A-1736-18T3
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that Fred could not be an effective or appropriate parent to John for the

foreseeable future.

Albert Griffith, Ed.D., a psychologist, evaluated Fred on two occasions.

He testified that Fred was unable to safely parent John due to his mental

limitations, emotional state, lack of interest in obtaining treatment for his

substance abuse, and lack of parenting skills. Griffith noted that Fred did not

have plans for childcare. He also testified that Fred's plans for post-

incarceration life included engaging in criminal activity to support himself.

Griffith concluded that Fred would be unable to safely parent John for th e

foreseeable future.

Furthermore, Griffith determined that John has no attachment to Fred and

that he did not consider Fred a source of support. Griffith testified that John

was noticeably uncomfortable during the bonding evaluation. In contrast , John

had a secure and healthy attachment to Susan. Griffith pointed out in his

testimony that John was a special needs child. Griffith opined that John would

likely remain a special needs child and that Susan would continue to meet those

needs.

Fred offered no testimony or documentary evidence at trial.

III.

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We begin our analysis by acknowledging the legal principles that govern

this appeal. Our Supreme Court has held that a parent has a constitutional right

to raise his or her biological child, which "is among the most fundamental of all

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

However, the State as parens patriae may act to protect a child from physical or

emotional harm. Ibid. A parent's constitutional rights, in other words, are not

absolute and must yield to the State's interest in protecting a child from harm or

endangerment. Ibid. Accordingly, the State can seek to sever the parent-child

relationship when the interests of the parent and child are irreconcilable. N.J.

Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599, 602–03 (1986).

Importantly, a child has a right to a permanent, stable, and safe placement. N.J.

Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).

The termination of parental rights should only be pursued when "proof of

parental unfitness is clear." F.M., 211 N.J. at 448. In a termination proceeding,

the trial court determines whether the Division has successfully established that

the four elements of the best-interests-of-the-child statutory test have been

satisfied. N.J.S.A. 30:4C-15.1(a). That statute requires that the Division prove

by clear and convincing evidence that:

A-1736-18T3
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(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 of 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.

[Ibid.]

When applying the best interests test, a trial court must pay specific

attention to a child's need for permanency and stability. In re Guardianship of

DMH, 161 N.J. 365, 385–86 (1999). As a result, the trial court must consider

"not only whether the parent is fit, but also whether he or she can become fit

within time to assume the parental role necessary to meet the child's needs."

N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div.

2006).

A-1736-18T3
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The scope of an appellate court's review of the decision to terminate

parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact

if supported by adequate, substantial, and credible evidence in the record." Ibid.

An appellate court should defer to the trial court's credibility determinations and

to its "special expertise in the field of domestic relations." N.J. Div. of Youth

& Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare,

154 N.J. 394, 412 (1998)). An appellate court therefore should not alter the

findings below unless there was a manifest denial of justice. N.J. Div. of Youth

& Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989). However,

the trial court's interpretation of the law and legal findings are reviewed de novo.

R.G., 217 N.J. at 552.

IV.

Under the first prong of the best-interests-of-the-child test, the trial court

examines the effect of the harm that stems from the parent-child relationship

over time. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

It may consider both physical and psychological harm and, therefore, may base

its termination decision on emotional injury in the absence of physical harm.

A-1736-18T3
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See In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977) ("The

absence of physical abuse or neglect is not conclusive on the issue of custody.").

Fred contends the trial court erred when it found the Division proved the

first prong because he did not harm his son or place him at risk of harm. He

argues, in this regard, that John was not exposed to his substance abuse issues,

domestic violence, or mental health problems. Further, Fred argues on appeal

that his lack of parenting experience and his present incarceration should not

have been used as support for the first prong.

We conclude to the contrary that there is adequate, substantial, credible

evidence to support Judge Velazquez's conclusion that Fred's relationship with

John has caused harm to the child and will continue to expose him to harm that

will negatively affect his health and development. The uncontradicted

testimony of two experts, both found to be well-qualified and credible by the

trial court, shows that Fred has unresolved substance abuse and mental health

issues that will continue to threaten John's health and development. If, as Fred

contends, he has not exposed John to his substance abuse, domestic violence,

and mental health problems, it is only because he has had very little exposure to

John of any kind.

A-1736-18T3
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We also reject Fred's argument that the trial court improperly considered

the fact that he was incarcerated for most of John's life. There is ample support

in the record to support the conclusion that Fred's absence from his son's life has

contributed to John's instability. That absence is the direct result of Fred's

decision to engage in criminal activity leading to his periods of imprisonment.

Our Supreme Court has explained that "[a] parent's withdrawal of that

solicitude, nurture, and care for an extended period of time is in itself a harm

that endangers the health and development of the child." D.M.H., 161 N.J. at
379 (citing In re Guardianship of K.H.O., 161 N.J. 337, 352–54); see also In re

Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (stating that first prong is

satisfied by showing that serious psychological damage could occur as result of

parent's actions or inaction). We have previously held, moreover, that a parent's

inability to remain out of prison could have negative effects on a child's stability.

N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534–36 (App.

Div. 2006) (discussing the impact of incarceration, including that it prevents

adequate parenting); see also In re Adoption by L.A.S., 134 N.J. 127, 137–39

(1993) (explaining that court is allowed to consider parent's incarceration when

determining whether or not to terminate parental rights).

A-1736-18T3
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We add that the trial court did not use Fred's incarceration as a per se basis

for terminating his parental rights. Rather, the trial court prope rly considered

the effect of Fred's incarceration on the child as one factor among many relevant

circumstances pertaining to Fred's parental fitness. Relatedly, there was ample

evidence in the form of credible expert testimony that Fred would not become a

fit parent upon his impending release from prison.

Under the second prong of the best interest analysis, which is closely

related to the first prong, parental unfitness can be demonstrated in two

alternative ways. K.H.O., 161 N.J. at 352. First, a party can show that

continuation of the parental relationship will likely cause future harm to the

child. A.W., 103 N.J. 607, 615–16. This can be established by proving parental

"dereliction and irresponsibility," which can be shown by proof of continued

substance abuse, the inability to provide a stable home, and the withholding of

nurturing and attention. D.M.H., 161 N.J. at 353.

The other way of establishing the second prong is by presenting evidence

that removing the child from his or her resource placement would cause serious

and enduring mental or emotional impairment. N.J.S.A. 30:4C-15.1(a)(2).

A-1736-18T3
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Under this alternative approach, a trial court examines the bonds between a child

and his or her resource parent(s). D.M.H., 161 N.J. at 382.

In this instance, the Division presented proof under both ways of

establishing the second prong. Fred contends that the court erred when it

concluded that the Division satisfied the second prong because he will qualify

for parole next year and has participated in prison-based services. That

argument misses the point. Judge Velazquez relied on ample, credible, and

substantial evidence in the record when he concluded that Fred was unwilling

or unable to eliminate the harm facing John and was unwilling and unable to

provide a safe and stable home.

Federbush testified, for example, that while Fred complied with treatment

during his incarceration, his past conduct indicated that he would immediately

revert to a life of crime and resume abusing drugs upon release. We have

previously recognized that "parents dabbling with addictive substances must

accept the mandate to eliminate all substance abuse" and "[s]uch unabated

behavior . . . causes continuing harm by depriving their children of necessary

stability and permanency." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.

Super. 228, 245–46 (App. Div. 2010); see also K.H.O., 161 N.J. at 363 (finding

a parent's inability to overcome his or her own addiction in order to care for a

A-1736-18T3
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child constitutes endangerment of that child). In New Jersey Division of Youth

& Family Services v. I.H.C., we explained that a parent's past conduct is relevant

in determining his or her future conduct. 415 N.J. Super. 551, 576 (App. Div.

2010).

Furthermore, applying the alternative method for establishing the second

prong of the statutory test, there was ample expert testimony that separating John

from Susan would cause serious and enduring harm. Delay in providing John

with a permanent home, moreover, would only add to the harm he has already

suffered as a consequence of Fred's actions and absence.

Under the third prong of the best interest test, the trial court must decide

if the Division made reasonable efforts to reunify the family. N.J.S.A. 30:4C-

15.1(c). Fred contends that the court erred when it held that the Division

satisfied this prong because he was not offered sufficient parenting time with

John.

We disagree. The record shows the Division coordinated with the

Department of Corrections to provide services to Fred, facilitated visitation, and

provided bonding and psychological evaluations. Services provided at the

prison included: monthly meetings with the Division case manager; art therapy;

A-1736-18T3
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group therapy; individual therapy; relapse prevention services; and medication

monitoring. We therefore conclude there was ample, credible, and substantial

evidence in the record to support the trial court's conclusion that the Division

made reasonable efforts aimed at reunification.

Furthermore, as explained in the supplemental written opinion, the trial

court considered alternatives to the termination of parental rights and found by

clear and convincing evidence that no alternatives existed. For example, the

court heard testimony that the Division assessed all five relatives that Fred

submitted as possible placements for John. The record reflects that all five

family members were assessed and ruled-out. As the trial court noted, none of

those family members appealed or requested a re-assessment. See N.J.S.A.

30:4C-12.1(b) ("If the department determines that the relative is unwilling or

unable to assume the care of the child, the department shall not be required to

re-evaluate the relative.").

Further, the record reflects that Susan was not interested in kinship legal

guardianship. As a result, that was not an option. Finally, reunification was not

a viable option because it would cause harm to John according to the testimony

of Federbush and Griffith. See A.W., 103 N.J. at 605 (explaining that

reunification is not option when it could cause harm to child).

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D.

The fourth prong of the best interests test requires that the Division show

that "[t]ermination of parental rights will not do more harm than good." N.J.S.A.

30:4C-15.1(a)(4). The trial court may rely on expert testimony when evaluating

the potential injury that a child may experience through the termination of

parental rights against the harm that the child might suffer if removed from the

resource placement. See K.H.O., 161 N.J. at 355–56 (considering expert

testimony when evaluating the fourth prong).

Fred contends that Judge Velazquez erred when he held that the Division

had proven the fourth prong because the lack of appropriate parenting time

hindered his ability to bond with John. We reject that argument. As we have

noted, the lack of parenting time in this case is the direct result of Fred's decision

to engage in serious criminal activity warranting lengthy incarceration. His

absence from John's life and resulting paucity of parenting time cannot be

attributed to the Division. To the contrary, he alone is responsible for that

circumstance.

In any event, we find ample, substantial, and credible evidence in the

record to support the trial court's conclusion that the termination of Fred's

parental rights would not do more harm than good. John and Fred barely have

A-1736-18T3
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a bond, and John is not comfortable around his father. Fred lacks the necessary

basic parenting skills and suffers from unstable moods. The trial court

concluded, moreover, that the danger posed by Fred's parenting deficits would

only be exacerbated by John's special needs. In contrast, the bond between John

and Susan is strong. She has provided stability, encouragement, instruction, and

protection.

In sum, we hold that the trial court properly found that clear and

convincing evidence was adduced by the Division to establish all four prongs of

the statutory best interest test. The record, which includes credible and

undisputed testimony of two qualified experts, amply supports the trial court's

conclusion that Fred is unable to provide John a safe, stable, and permanent

home. Given his history of addiction and mental illness, and his penchant for

committing crimes and acts of violence, his unfitness to serve as John's parent

will not change in the foreseeable future. Meanwhile, the termination judgment

paves the way for John to be adopted by his aunt, who can provide him with

permanency, stability, and love throughout his childhood and beyond.

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To the extent we have not already addressed them, any additional

arguments Fred has made on appeal lack sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(1)(E).

Affirm.

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