Opinion
DOCKET NO. A-4596-11T2
03-20-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. H.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF N.Z.L., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina G. Ramirez, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.Z.L. (Jeffrey R. Jablonski, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-42-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina G. Ramirez, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.Z.L. (Jeffrey R. Jablonski, Designated Counsel, on the brief). PER CURIAM
Defendant H.P. appeals from an April 2, 2012 order terminating his parental rights to his son N.Z.L. We affirm, substantially for the reasons stated by Judge Kathryn A. Brock, in her comprehensive written opinion dated April 2, 2012.
The facts are reviewed at length in Judge Brock's opinion and need not be repeated here in the same level of detail. To summarize, the child was born in January 2010, to a teenage mother who herself was in the custody of the Division of Youth and Family Services (Division). The mother had serious emotional problems, and the baby was placed in foster care soon after his birth. The mother's parental rights were terminated, and she has not appealed.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
According to H.P., who was eighteen at the time the child was conceived, he and the mother were in a romantic relationship, but he moved to North Carolina to live with relatives there. Before he left New Jersey, he found out that his girlfriend was pregnant. She called him when the baby was born, but he did not come back to New Jersey to try to support her or the baby. About seven months later, H.P. moved back to New Jersey. He participated in the Division's guardianship action, and cooperated with the services the Division offered him.
However, despite the services provided to him, it is abundantly clear on this record that H.P is incapable of caring for a child. He has serious mental health issues which, according to the State's expert witness, Dr. Mark Singer, have gotten worse over time. H.P. freely admitted to Dr. Singer that he could not care for his son. Meanwhile, N.Z.L., who is developmentally delayed, has been with the same foster parent for two years, has bonded with her, and would suffer severe harm if that relationship were severed. The foster mother wants to adopt the child but is willing to let H.P. have contact with him. Shortly before the guardianship trial, H.P.'s brother, who lives in North Carolina, expressed a willingness to adopt the child, although he has never met him.
The Division's brief advised us that the brother was ruled out as a possible placement because he was unemployed and lacked appropriate housing.
Following the guardianship trial, Judge Brock issued a thorough opinion, addressing the four prongs of the best interests test, N.J.S.A. 30:4C-15.1a(1) to -15.1a(4), and concluding that termination of H.P.'s parental rights was in the child's best interests.
On this appeal, we must defer to Judge Brock's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 2 69 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We owe special deference to a trial judge's credibility determinations, and to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102.
In striking a balance between the parents' constitutional rights and the child's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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.
[N.J.S.A. 30:4C-15.1a.]
In their application, the four factors above "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008); see Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 167 (2010).
We have reviewed the record and conclude that Judge Brock's decision is supported by sufficient credible evidence and is consistent with the above-cited principles of law.
We have considered H.P.'s appellate arguments, which he states in the following points:
POINT I: THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE H.P.'S PARENTAL RIGHTS IN ORDER TO PROTECT THE BEST INTERESTS OF N.Z.L.
A. THE DIVISION FAILED TO PROVE THAT N.Z.L.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY A PARENTAL RELATIONSHIP WITH H.P.
B. THE DIVISION FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT H.P. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING N.Z.L. OR IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.
C. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP H.P. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.
D. THE DIVISION FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF H.P.'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add the following comments.
In his brief, H.P. emphasizes that he never harmed the child, and he cooperated with the Division to try to become a fit parent. However, the issue is not whether H.P. is at fault in this case. At age eighteen, he fathered a child whom he was completely unprepared to care for. Although the Division has provided H.P. with multiple services, he is still, by his own admission, not able to care for the child. He testified at the guardianship trial, and his severe limitations were evident from the transcript. Meanwhile, the child, who has special needs, has bonded with a foster parent who is able to meet his needs and wants to adopt him. Further, she is willing to let H.P. maintain a relationship with the child. On this record, we find no basis to disturb Judge Brock's well-reasoned decision terminating H.P.'s parental rights.
We acknowledge that "open adoption agreements[,] because of the sensitive and complex issues of public policy such a decision raises" are unenforceable, but rather are "completely voluntary." In re Guardianship of K.H.O., 161 N.J. 337, 362 (1999); In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION