Opinion
DOCKET NO. A-3536-14T2
02-08-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF M.T.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Amy Kriegsman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-113-15. Joseph E. Krakora, Public Defender, attorney for appellant (Amy Kriegsman, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant appeals an order terminating her parental rights to M.T.M., her only child, arguing the Division failed to prove all four prongs of the statutory test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. We disagree and affirm.
M.T.M. was born on July 12, 2012. Having executed a general surrender of his parental rights, M.T.M.'s father is not a party to this appeal.
Defendant came to the attention of the Division of Child Protection and Permanency when, on August 28, 2011, another child, who was then two years old, ingested Ativan while in the care of an elderly family friend. Allegations of inadequate supervision in that regard were unfounded, but, a few months later, this same child suffered a fatal gunshot wound to the head, resulting in defendant's then paramour being charged with manslaughter. At that time, defendant was pregnant with M.T.M., who has been in the Division's care and custody since birth.
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Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.
The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:
(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
(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; andSee also A.W., supra, 103 N.J. at 604-11.
(4) Termination of parental rights will not do more harm than good.
Here, by way of an oral decision, the trial judge determined the Division demonstrated, by clear and convincing evidence, that all four prongs warranted termination of defendant's parental rights. After closely examining the record, we are satisfied that defendant's arguments that the Division failed to prove any of these prongs are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We make only the following brief observations.
In considering the first two prongs, the judge relied on evidence adduced from the Division caseworker, as well as the Division's expert — the only expert to testify — that defendant was not then capable of parenting and there was no expectation she would be capable of parenting in the future, a circumstance then complicated by defendant's incarceration. The judge found that before her incarceration, defendant did not have stable housing and was not compliant with drug treatment for nearly a year; at the time of trial, defendant had not visited the child for six months, and the Division's expert testified that defendant admitted she had no intention of stopping her drug use. From these and other circumstances, the judge concluded that defendant was unwilling to place the child's needs ahead of her own.
The judge's finding that the third prong favored termination was also supported by the record, which demonstrated that the Division offered extensive services during defendant's pregnancy and until her incarceration in December 2014, including assistance with securing welfare, parent aide services, substance abuse assessments and treatment, psychological and psychiatric evaluations, supervised visitation, and transportation assistance. And the Division endeavored to foster a relationship between defendant and child by placing the child with his maternal grandmother; that placement, however, failed when defendant was incarcerated as a result of assaulting her mother.
The fourth prong was more than amply satisfied by the testimony of the Division's expert that the child was not psychologically bonded to defendant. The child had been in foster care for essentially his entire life; visitation was sporadic at best and did not occur at all for approximately six months preceding the trial. The experienced judge recognized that the child's "need for permanency and stability outweigh[ed] the unstable relationship he has had with his mother."
The judge's findings were supported by evidence he found credible and are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION