Opinion
DOCKET NO. A-0115-15T4
04-29-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.A.M., Defendant, and L.A.O., Jr., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF L.A.O., III, a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Kylie A. Cohen, Assistant Deputy Public Defender, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ashton Didonato, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.A.O., III (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John, Guadagno, and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-54-15. Joseph E. Krakora, Public Defender, attorney for appellant (Kylie A. Cohen, Assistant Deputy Public Defender, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Ashton Didonato, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.A.O., III (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant L.A.O., Jr. appeals from the August 18, 2015 order entered by Judge Arnold L. Natali, Jr. terminating defendant's parental rights to his son, L.A.O., III (Lawrence) and awarding guardianship to the Division of Child Protection and Permanency (Division). The order also terminated the parental rights of Lawrence's mother, M.A.M. (Marsha), who has not appealed.
We employ pseudonyms to protect the privacy of the minor. --------
Defendant claims the evidence was insufficient to satisfy the four prongs of the best interest test in N.J.S.A. 30:4C-15.1(a). After considering all of defendant's arguments we conclude that the Division produced clear and convincing evidence to support each prong, and we affirm the judgement of guardianship substantially for the reasons contained in Judge Natali's thorough and comprehensive written decision.
The Division's involvement in this case began on March 22, 2013, after receiving a referral that Marsha was seven months pregnant and using heroin on a daily basis. A caseworker contacted Marsha and offered services, but Marsha declined.
On April 1, 2013, Marsha began to have contractions and called 9-1-1. She gave birth to Lawrence in an ambulance on route to the hospital. Marsha identified defendant as the father. Marsha later tested positive for marijuana, benzodiazepine, and opiates; Lawrence was positive for opiates and marijuana, and was treated with morphine for withdrawal symptoms. He remained on morphine until April 30, 2013, when he was weaned off.
The Division was again notified and a caseworker spoke with Marsha and defendant at the hospital. Defendant told the caseworker he was homeless and unemployed. On April 18, 2013, the Division was granted temporary custody of Lawrence. The Division scheduled psychological and substance abuse evaluations for both parents, but neither attended. Therapeutic visitation was arranged, but the parents missed seventeen out of twenty-three scheduled visits as of November 2013. When defendant did see his son, he occasionally slept during the visit.
It soon became apparent that Lawrence had special needs and required developmental assistance, including speech therapy. He was diagnosed with hydrocephalus, and on May 14, 2014, underwent a surgical procedure to implant a cerebral shunt.
On November 1, 2013, defendant was indicted and charged with possessing heroin. On December 23, 2013, both parents refused to participate in a substance abuse evaluation, after failing to attend nine previously scheduled evaluations.
Defendant was arrested on April 24, 2014, and remained incarcerated until June 30, 2014, when he pled guilty and was placed on probation for three years with a special condition that he serve ninety days in jail and enroll in a drug program. On May 29, 2015, defendant was sentenced to a four-year prison term for drug possession, to run concurrently with prior sentences.
On July 8, 2014, the Division filed a complaint seeking guardianship of Lawrence. A case management conference was held on April 29, 2015. Defendant was incarcerated and was produced for the hearing. The court ordered the Division to continue to explore options for visitation while defendant was incarcerated.
On May 27, 2015, a permanency hearing was held and Judge Natali accepted the Division's permanency plan of termination of the parental rights of both parents followed by adoption by the resource parents Lawrence had been residing with.
Trial began on June 29, 2015, and concluded on August 6, 2015. Marsha did not appear but was represented by counsel. The Division called Dr. Alan S. Gordon, and caseworkers Kimisha Hughes-Pompey, Patricia Short, Daphney Mgbako, and Valerie Jordan. Defendant testified, but called no witnesses. On August 18, 2015, Judge Natali issued a thorough written decision concluding that the Division satisfied the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and ordered the termination of both parents' parental rights to Lawrence.
On appeal, defendant raises the following point:
I.
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A DETERMINATION THAT DCPP MET THE HEAVY BURDEN OF PROOF APPLICABLE TO ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1A TO TERMINATE PARENTAL RIGHTS.
A. THERE WAS INSUFFICIENT EVIDENCE TO FIND THAT THE TRIAL COURT CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS AND THAT DCPP MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO L.A.O., JR. TO CORRECT THE CIRCUMSTANCES WHICH LED TO HIS SON'S PLACEMENT, INCLUDING HOUSING AND EMPLOYMENT ASSISTANCE, AS WELL AS VISITATION WITH HIS SON, PARTICULARLY DURING INCARCERATION.
B. CLEAR AND CONVINCING EVIDENCE DID NOT EXIST THAT L.A.O., JR. HARMED HIS CHILD OR THAT THE CHILD WOULD BE ENDANGERED BY THE PARENTAL RELATIONSHIP BECAUSE THE TRIAL COURT DID NOT REVIEW THE FULL TRIAL RECORD IN ITS DECISION, FAILED TO CONSIDER FACTS AS TO L.A.O., JR.'S LIVING AND
EMPLOYMENT SITUATION AND THEIR CONNECTION TO DCPP'S REFERRALS FOR SERVICES, AND DID NOT BASE A DETERMINATION ABOUT FUTURE HARM ON THE TOTALITY OF THE EVIDENCE.
C. CLEAR AND CONVINCING EVIDENCE DID NOT EXIST THAT L.A.O., JR. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS SON OR TO PROVIDE HIM WITH A SAFE AND STABLE HOME BECAUSE THE TRIAL COURT FAILED TO CONSIDER THAT L.A.O., JR. HAS CONSISTENTLY PRESENTED REALISTIC PLANS FOR HIS SON, AND DISREGARDED L.A.O., JR.'S EFFORTS TO FORM A STABLE FOUNDATION FOR HIMSELF TO EFFECTIVELY ATTEND DCPP SERVICES.
D. CLEAR AND CONVINCING EVIDENCE WAS LACKING TO FIND THAT TERMINATION OF L.A.O., JR.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD BECAUSE WITH TERMINATION OF PARENTAL RIGHTS, L.A.O., III WILL FOREVER LOSE HIS RELATIONSHIP WITH HIS FATHER, AND HIS PATERNAL FAMILY, AND THE BONDING EVALUATION THAT WAS CONDUCTED AND RELIED ON BY THE TRIAL COURT FAILED TO SHOW A DEFINITE, UNDOUBTED BOND BETWEEN THE CHILD AND THE FOSTER PARENTS.
Commencing with the Division's involvement with the family in March 2013, and continuing up to and including the trial in June 2015, defendant was unable to overcome the deficiencies that rendered him unable to safely parent his child. Defendant was homeless, unemployed, suffered substance abuse issues, and was incarcerated for much of the first two years of Lawrence's life. In Dr. Gordon's unrebutted testimony, he noted defendant's extensive criminal history, and concluded that defendant "hasn't been able to learn from experience or punishment." Despite participation in several substance abuse programs, defendant continues to seek out drugs and exhibits "a high degree of anti-social thoughts," and "an arrogant sense of self-worth," characteristics that bear on "his emotional stability and ability to parent the child on a long-term basis."
Dr. Gordon testified that Lawrence is with resource parents who are "involved, reliable, mature . . . and [] able to address [Lawrence's] difficulties," and he concluded that it would be "very harmful" to remove Lawrence from people he sees as his parents. By contrast, Dr. Gordon testified that defendant demonstrated a troubling lack of knowledge of Lawrence's "severe physical difficulties," including the shunt that was implanted in his brain and complications that arose from the procedure.
Judge Natali carefully reviewed the evidence presented, and thereafter concluded that the Division had met by clear and convincing evidence all of the legal requirements for a judgment of guardianship. His opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), and is supported by substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION