Opinion
DOCKET NO. A-5188-14T3
02-18-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF N.P., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas W. MacLeod, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Bindi Merchant, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annmarie Sedore, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-18-15. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas W. MacLeod, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Bindi Merchant, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annmarie Sedore, Designated Counsel, on the brief). PER CURIAM
Defendant L.P., the biological mother of N.P. (Nathan), born in September 2010, appeals from the June 30, 2015 Family Part order, which terminated her parental rights to the child. On appeal, defendant contends that the New Jersey Division of Child Protection and Permanency (Division) failed to prove by clear and convincing evidence prongs one, two and four of N.J.S.A. 30:4C:15.1(a). For the following reasons, we affirm.
We use a fictitious name to identify the child to protect his identity.
Our Supreme Court has established the standard of review in parental termination cases:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible
evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations omitted).]
A court should terminate parental rights when the Division proves by clear and convincing evidence that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (citations omitted).
(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 [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; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
The Division need not demonstrate actual harm in order to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The test is whether the child's safety, health or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. A.G., supra, 344 N.J. Super. at 440. Prong one can be satisfied by establishing that "the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)).
A parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to the child. D.M.H., supra, 161 N.J. at 383. Likewise, a parent's failure to provide "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. Compounding the harm is the parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child.]" Id. at 380. Such inaction "constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.
"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352; D.M.H., supra, 161 N.J. at 378-79. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The second prong may be satisfied
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, 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.Further,
[K .H.O., supra, 161 N.J. at 353.]
parents dabbling with addictive substances must accept the mandate to eliminate all substance abuse. Such unabated behavior initiates the foster care placement of their children and causes continuing harm by depriving their children of necessary stability and permanency. . . . [T]he delayed reunification, accompanied by the concomitant consequence of allowing the child's attachment to a resource caregiver continues the significant harm to the child
in satisfaction of N.J.S.A. 30:4C-15.1(a)(2)."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., supra, 211 N.J. at 451 (alteration in original) (quoting K.H.O., supra, 161 N.J. at 363).
[N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245-46 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011) (citations omitted).]
The fourth prong seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The fourth prong serves as a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "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 that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must determine "whether . . . the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.
Defendant does not challenge the third prong. --------
Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Thus, "'[t]o satisfy the fourth prong, 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., supra, 211 N.J. at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is [a] child's need for permanency. Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid. (alteration in original) (citation omitted).
In a June 30, 2015 oral opinion, Judge John J. Matheussen reviewed the undisputed factual and expert evidence presented at the trial of this matter, made detailed factual findings and legal conclusions as to each prong of N.J.S.A. 30:4C-15.1(a), and thereafter concluded the Division met by clear and convincing evidence all of the legal requirements for an order of guardianship.
Regarding the first and second prongs, the judge found that defendant harmed Nathan by her continued substance abuse, poor judgment, untreated mental health issues, and failure to comply with services and provide appropriate care and a safe and stable home, all of which caused the child's removal and placement into foster care in December 2012. The judge determined that defendant had not eliminated the harm caused to Nathan, it was not reasonably foreseeable that she could do so, and the delay in permanent placement would add to the harm. Regarding prong four, the judge found that termination of defendant's parental rights would not do Nathan more harm than good, and Nathan will suffer greater harm if removed from his foster parents, who want to adopt him.
Judge Matheussen's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with K.H.O., supra, 161 N.J. 337, D.M.H., supra, 161 N.J. 365, and A.W., supra, 103 N.J. 591, and is more than amply supported by credible evidence in the record. F.M., supra, 211 N.J. at 448. We have considered defendant's arguments to the contrary in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons the judge expressed in his comprehensive and well-reasoned oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION