Opinion
DOCKET NO. A-5301-13T3
04-07-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. P.K., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF H.K., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.K. (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-205-14. Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid Enriquez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jessica M. Steinglass, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.K. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant P.K. appeals from a June 26, 2014 judgment, entered following a trial, which terminated her parental rights and awarded guardianship of her minor child, H.K., to the Division of Child Protection and Permanency (Division) for the purposes of securing his adoption. The child's father, B.H., did not appear at trial because he had executed an identified surrender of his parental rights to the child's resource parent, T.R., on February 19, 2014, and was dismissed from the litigation.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including renaming the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).
The Division's complaint also sought guardianship of defendant's older child, D.R., whose biological father resides in England. Prior to trial, the Division amended its complaint to remove D.R. from consideration, as the permanency plan for the child changed to a kinship legal guardianship with a relative caregiver, who also is H.K.'s resource parent.
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On appeal, defendant argues the trial judge erred in assessing the Division's evidence, which she maintains was insufficient to satisfy each of the four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a), to prove guardianship was in the best interests of the child. Following our review, we reject defendant's arguments as unfounded and affirm substantially for the reasons set forth in Judge Mark J. Nelson's twenty-page written opinion. R. 2:11-3(e)(1)(A). We add these brief comments directed to defendant's challenges.
From the Division's initial involvement with this family on January 8, 2012, defendant abused phencyclidine (PCP). Despite numerous referrals to various rehabilitation programs, defendant tested positive for PCP on May 28, 2014, one week before the guardianship trial. Defendant agrees the proofs showed her unabated illicit drug use; however, she suggests no evidence demonstrated she harmed the child. She states she never exhibited psychotic episodes while on PCP, never neglected or abused her children, and her only offense was allowing B.H. access to her son.
We find these contentions preposterous. Even the most liberal reading of this court's holding in New Jersey Division of Youth and Family Services v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011) ("Title 9 is not intended to extend to all parents who imbibe illegal substances at any time."), will not support defendant's contention.
The Division's evidence showed defendant continually used hallucinogenic drugs, even when responsible for the care of four-year-old H.K. She admitted she would get "kind of high, but not that high," believing she could effectively function. Fortunately, tragedy did not occur and the child was removed. Further, defendant failed to protect the child from harms caused by B.H.'s conduct when he was under the influence, see N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288-89 (2007) (holding a parent has an obligation to protect a child from harms that can be inflicted by another parent), and ignored court orders requiring she participate in substance abuse treatment and supervised visits with the child.
The Division need not stand idly by, waiting until defendant causes physical harm. In re Guardianship D.M.H., 161 N.J. 365, 383 ( 1999); 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). Ample evidence clearly and convincingly shows defendant rejected efforts to remain abstinent from PCP; therefore, she remained unwilling and unable to provide a "permanent, safe, and stable home," for H.K., which unquestionably engendered significant harm to this child. D.M.H., supra, 161 N.J. at 383. "[P]arents 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." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). The Division satisfied prongs one and two of the statutory test. N.J.S.A. 30:4C-15.1(a)(1), (2) (requiring the proof of parental harm caused to the children and the failure to mitigate that harm).
The argument challenging the Division's evidence regarding satisfaction of the third prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(3), lacks sufficient legal and factual merit to address in our opinion. R. 2:11-3(e)(1)(E).
Finally, in considering the evidence supporting the fourth prong of the statutory test, which requires assessment of whether termination of parental rights will not do more harm than good to the child, N.J.S.A. 30:4C-15.1(a)(4), Judge Nelson balanced the child's relationships with defendant and the resource parent. The judge evaluated the harm projected to be suffered by the child from severing ties with defendant and from permanently disrupting his relationship with the resource parent. In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). Carefully weighing all evidence, Judge Nelson noted the child's positive emotional attachment to defendant and agreed with defendant's expert she was a "functional PCP user," as nothing contradicted her statement she worked at a temporary agency while regularly using PCP. However, the expert's favorable assessment of defendant's functioning was offset by his opinion that "under no circumstances" could he advocate for the child's return to defendant's care while she actively used PCP; his assessment of her parenting ability was conditioned on her not using drugs. Defendant made her choice clear: she would not cease her substance abuse. Sacrificing H.K.'s need for permanency in the hope defendant might change her mind would in fact cause the child more harm than good.
While recognizing the fundamental, constitutionally protected nature of parental rights, K.H.O., supra, 161 N.J. at 346-47, and the need to preserve and strengthen family life, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986), courts as parens patriae, must give priority to "[t]he child's right to a permanent home . . . ." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (citation and internal quotation marks omitted). The Division demonstrated by substantial credible evidence H.K. could not in the foreseeable future be returned to defendant's care without endangering the child's health and safety. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION