Opinion
DOCKET NO. A-0701-13T1
06-05-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.E.P., III, Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF I.M.U.-P., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-24-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant A.E.P., III appeals from a September 16, 2013 judgment, entered following a three-day trial, which terminated his parental rights and awarded guardianship of his two-year-old child I.M.U.-P. to the Division of Child Protection and Permanency (Division). On appeal, defendant argues the court misapplied the applicable legal standards and erred in assessing the Division's evidence, which he maintains was insufficient to satisfy each of the four prongs of the statutory test, N.J.S.A. 30:4C-15.1(a), to prove guardianship was in the best interest of the child. Following our review, we reject defendant's arguments as unfounded and affirm substantially for the reasons set forth in the oral opinion rendered by Judge Madelin F. Einbinder. R. 2:11-3(e)(1)(A).
I.M.U.-P.'s biological mother B.U. was also a defendant in the guardianship action. She executed a voluntary surrender on July 26, 2013, and has not appealed from the judgment.
We need not recite the trial evidence detailed in the court's opinion. We provide these brief comments.
Within days of I.M.U.-P.'s birth in 2011, defendant, a drug addict, was incarcerated for violating the terms of his drug court probation after his arrest for possession and use of heroin and a hypodermic syringe. The child's mother B.U. was also a heroin addict. I.M.U.-P. tested positive for methadone, opiates and cocaine and suffered from withdrawal of these substances at birth. The Division took custody of the child, who was placed in the care of her maternal grandparents. Since that time, the grandparents have provided continuous care and expressed a desire to pursue adoption.
Once released from jail, in October 2012, defendant met with his Division caseworker. Visitations were arranged and a case plan was developed to achieve reunification. Defendant was also required to complete the requirements of his criminal Intensive Supervision Program (ISP), which included drug treatment meetings and counseling, random urine screens, and securing and maintaining employment. Defendant commenced substance abuse treatment at Seashore Family Services.
Defendant's sobriety was short-lived and he was again arrested on February 11, 2013, after a relapse and use of heroin. By then, the Division had filed a guardianship complaint. Defendant was released from a residential halfway house on June 4, 2013, and trial began later that month. Visitation with the child resumed and the Division extended drug testing and counseling services. However, defendant failed to remain clean and was again jailed for violating probation when he failed a drug test. In August 2013, defendant was resentenced on the narcotics charges to a custodial term.
Judge Einbinder reviewed the evidence and found the Division had established it was in the child's best interests to terminate defendant's parental rights and award the Division guardianship to effectuate adoption by the maternal grandparents. Defendant appealed.
Parental rights, while constitutionally protected, are not absolute. In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998), vacated on other grounds, 163 N.J. 158 (2000). The government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). Accordingly, the State, as parens patriae, may sever the parent-child relationship when necessary to protect a child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.
When a child's biological parents resist termination of parental rights, it is the court's function to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.
A trial court's examination in a guardianship matter focuses upon what course serves the "best interests" of the child. In re Guardianship of K.H.O., 161 N.J. 337, 343 (1999). Our Legislature requires satisfaction of the "best interests of the child" test, codified at N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence before termination of parental rights can occur. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to prove:
(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.
These factors are neither discrete nor separate; rather, they "'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008) (quoting K.H.O., supra, 161 N.J. at 348). Whether the State has satisfied each prong by clear and convincing evidence is an "extremely fact sensitive" inquiry, which must be based on "particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (internal quotation marks and citations omitted), certif. denied, 190 N.J. 257 (2007).
Defendant argues the judge erred in her findings because he never harmed I.M.U.-P., was not provided reasonable services to allow reunification with the child, the Division failed to consider alternatives to guardianship, and the child would be harmed by termination of his parental rights. We reject these assertions.
The harm facing the child "need not be physical [as] . . . [s]erious and lasting emotional or psychological harm to [the] child[] as the result of the action or inaction of [his or her] 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). In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Similarly, a "parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting." Ibid.
Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. See also J.C., supra, 129 N.J. at 26 (noting children have "an essential and overriding interest in stability and permanency"). This requires the "best interests" test be viewed in light of amendments to N.J.S.A. 30:4C-15.1, "which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. § § 301, 671[(a)](16), 675(5)(A)(ii)." N.J. Div. of Youth & Family Servs v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). These amendments clarify "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). To this end, "the attention and concern of a caring family is 'the most precious of all resources[,]'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613).
It is true that the Division only asserted B.U.'s substance abuse caused I.M.U.-P.'s removal and supported the finding she was an abused and neglected child. However, defendant seeks to ignore that he too was an addict, whose conduct caused him to be unavailable to assume the child's care when her mother was incapable of doing so. After I.M.U.-P.'s birth, defendant was incarcerated for drug related offenses and spent most of the child's young life in jail. As noted by Judge Einbinder, at trial defendant was "once again unavailable to meet the physical and emotional needs of [I.M.U.-P.]."
It is also true that defendant's visitations with I.M.U.-P. went well and he demonstrated appropriate care and affection. Further, his expert, whose evaluation was completed in June 2013, opined defendant could learn parenting skills and voiced his desire to be his child's caretaker. Nevertheless, a prerequisite to achieving safe, stable parenting is abstinence from illicit drug use. Unfortunately, no evidence demonstrated defendant's realization of this accomplishment. Rather, the evidence overwhelmingly supported defendant's destabilizing drug use had not ceased, making him unable to assume responsibility to safeguard, nurture and care for I.M.U.-P. at any time in the foreseeable future. See K.H.O., supra, 161 N.J. at 353 (holding "parental dereliction and irresponsibility," including "the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child" satisfy the second prong of the best interest test).
Defendant also argues the Division lapsed in fulfilling its responsibility to reasonably assist his reunification with the child, particularly because the Division failed to extend services while he was in prison. We disagree.
We recognize the restrictions imposed by prison operations and security, impeding third-party interactions with inmates. Despite his incarceration, the Division met with defendant, kept him informed of I.M.U.-P.'s progress, and provided him services, and visitation efforts continued upon his release. We find no fault with the Division's coordination of substance abuse rehabilitation programs with the criminal justice system through ISP, rather than engaging in an independent and possibly duplicative undertaking. Unfortunately, all treatment efforts that were extended to defendant were unsuccessful because the cycle of drug use and incarceration continued even while the guardianship trial was under way. See In re Adoption of Children by L.A.S., 134 N.J. 127, 143 (1993) ("[A] parent's lengthy incarceration is a material factor that bears on whether parental rights should be terminated. Incarceration may be such a factor based on either abandonment or parental unfitness.").
We also reject the notion that had the Division conducted a psychological evaluation earlier, the outcome of this matter would have been altered. Defendant's heroin addiction is the single greatest obstacle to his success in providing for himself and his child. Until that hurdle is vaulted, defendant cannot safeguard and care for I.M.U.-P.
At trial, defendant testified in his own behalf, insisting he was working towards becoming a better parent. He also admitted he would not be ready to care for I.M.U.-P. when released from jail, and stated he needed more time. However, it is the child's needs that control. She needs a stable, secure, permanent home with reliable consistent caregivers. See C.S., supra, 367 N.J. Super. at 111 ("A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement."). It "would be a misapplication of the law" to keep a child "in limbo" hoping for some long term unification plan. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Defendant next seeks remand arguing Judge Einbinder failed to make findings regarding whether the maternal grandparents were properly advised regarding the implementation of a kinship legal guardianship (KLG), N.J.S.A. 3B:12A-1 to -7. See N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 233 (App. Div. 2013) (finding remand was necessary when a prospective caregiver was given incorrect information by the Division regarding the differences between adoption and KLG). This claim is rejected.
The Division caseworkers explained the requirements and provisions of KLG and adoption. The grandparents consistently expressed a desire to adopt I.M.U.-P. The child's grandmother testified on each of these subjects and was cross-examined by defendant. Nothing suggests she or her husband were coerced or duped into seeking I.M.U.-P.'s adoption.
Finally, in assessing the harm resulting from termination of parental rights or removing the child from her grandparents, we defer to Judge Einbinder's credibility determinations regarding the expert bonding testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The child had a "strong and secure" bond to her grandparents, who she considered her caregivers, while her attachment to defendant was likened to that of a playmate. These facts, when considered in light of defendant's unmitigated substance dependence and abuse, support the conclusion that severing the bond with defendant in favor of achieving permanency for the child would not cause more harm than good. See K.H.O. , supra, 161 N.J. at 363 ("[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent[s] is not as strong, that evidence will satisfy the requirement . . . that termination of parental rights will not do more harm than good to the child.").
Our review supports Judge Einbinder's evaluation of the underlying facts and the legal conclusions drawn therefrom. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). The conclusion that the Division specifically established the discrete yet overlapping prongs set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence is solidly grounded on the applicable law. New Jersey Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005). Accordingly, we sustain the judgment terminating defendant's parental rights and awarding the Division guardianship of I.M.U.-P.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION