Opinion
DOCKET NO. A-3673-13T1 DOCKET NO. A-3674-13T1
05-29-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.D. and M.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF S.D. and D.D., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant G.D. (Robert W. Ratish, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.B. (Chanell Branch, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mark E. Critchley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-71-13. Joseph E. Krakora, Public Defender, attorney for appellant G.D. (Robert W. Ratish, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.B. (Chanell Branch, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mark E. Critchley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
In these consolidated cases, defendants M.B. and G.D. each appeal an April 1, 2014 final judgment entered at the conclusion of a nine-day trial terminating their parental rights to their two young daughters, Sarah, age eight and Dena, age five. M.B., the children's mother, concedes she has an untreated substance abuse problem, unstable housing and no employment. G.D., the children's father, was incarcerated at the time of trial and likewise does not offer himself as an immediate placement. Although both argue the Division of Child Protection and Permanency failed to prove the four prongs of N.J.S.A. 30:4C-15.1a, the heart of their arguments is that the trial court erred in placing the children with the foster parents rather than with the children's paternal grandfather, who also wishes to adopt them. We find no merit in any of their arguments and affirm.
These names are fictitious
The Division provided services to this family for five years before the guardianship trial. G.D. and M.B. got into a physical altercation in the hospital shortly after Sarah's birth that the police had to break up. They declined the parenting classes and domestic violence counseling the Division offered, and the continuing violence between them finally led to final restraining orders a year later prohibiting them from any contact. Within two months of their entry, the Division received a referral from the shelter where M.B. was staying with Sarah, reporting a large burn on Sarah's arm. After initially lying to investigators about how the child got the burn, M.B. admitted that she had been staying at a hotel with G.D., in violation of the restraining orders, and the two had put Sarah on an exercise treadmill "to see what would happen." What happened was the child fell and got her arm caught in the treadmill's belt, resulting in the burn to her forearm.
The Division effected a Dodd removal and Sarah eventually went to live with M.B.'s aunt in North Carolina. G.D. and M.B. had supervised visitation while they tried to work through their addiction problems. M.B. never seriously engaged in treatment but G.D. did, completing a treatment program in July 2009.
When M.B.'s aunt died in March 2010, North Carolina social services recommended that Sarah continue to live with the aunt's family. By that time, however, M.B. had given birth to Dena on a New York City bus and North Carolina authorities did not recommend placing Dena, then three months old, with them as well. Accordingly, the Division began to consider alternate placements in New Jersey.
The Division contacted G.D.'s father and his long-time companion about whether they would consider caring for his granddaughters. The grandfather's companion told the worker that M.B. had vandalized their home, and that they had moved to get away from her. Although expressing love for the children, they were unable to deal with M.B. The Division followed up with a formal letter in November 2010 asking whether the grandfather would be interested in providing a permanent home for the children. When he did not respond, the Division sent him a letter ruling him out as a placement for his granddaughters.
Although M.B. throughout this period failed to complete several drug treatment programs and failed to secure independent housing or employment, G.D. made positive strides. In addition to completing drug treatment, G.D. completed domestic violence training, secured stable housing and got a job. After providing him with some intensive services, the Division in March 2011 reunified him, first with Sarah, and then, two months later, with Dena.
In June 2011, G.D. was arrested for possession of marijuana, although he failed to advise the Division of that fact. In June 2012 he tested positive for marijuana, and in August he was arrested on a drug distribution charge. The Division removed Sarah and Dena from his care and placed them in the foster home where Dena had lived for the first eighteen months of her life. G.D.'s father shortly thereafter contacted the Division to be considered as a placement for the girls. In January 2013, with both parents continuing to test positive for drugs, the Division's plan changed to termination of parental rights.
The case was tried over nine non-consecutive days. The Division presented extensive testimony of the services provided and the many failed efforts by both parents to rid themselves of their addiction to drugs. The Division also presented the expert testimony of a psychologist, who opined that any child placed in M.B.'s care would be at risk of physical harm because of her volatile and aggressive behavior and her continuing use of drugs. The expert's overall impression of G.D. was that he has a serious problem with both using and dealing drugs, which he minimized, and is too lacking in responsibility and has too little insight into the effect of his behavior on the children to be entrusted with their care.
After observing the children with each of their parents, the foster parents, and with their paternal grandparents, the expert opined that separating the girls from their foster parents and reuniting them with either birth parent would have negative psychological effects on them. If M.B.'s rights were severed, Sarah's loss would be painful but could be mitigated to a significant extent by the foster parents. Dena's loss would not be traumatic.
The expert found the situation presented by termination of G.D.'s rights more complex because the girls spent a year in his care. He opined that Sarah is strongly attached to G.D. and would suffer a significant and painful loss if her ties to him were broken. Although the foster parents can mitigate Sarah's loss to some extent, the expert found she would suffer if she had no further contact with G.D. Dena's loss he thought would be less severe because she is younger and has a more exclusive attachment to the foster parents.
The expert concluded that leaving the children with their foster parents would best serve their needs. Indeed, he saw no viable alternative for Dena, terming it her only chance of developing a continuous, permanent placement. Although the children both exhibit positive feelings toward their paternal grandparents, neither child is bonded to them. The expert commented that it would be possible to place Sarah with her grandfather and leave Dena with the foster parents, but the different placements would sever their connection, causing Sarah a significant loss.
G.D. presented his own expert who, while not able to recommend reunifying the girls with him, could support placing them with his father. She recommended that the girls not be released for adoption with the foster parents because there was not a substantially stronger, healthier bond between the children and the foster parents than between the children and family members. Because the paternal grandparents and foster parents were equal options in her view, she thought it made sense to place them with blood relatives. She agreed with the Division's expert, however, that the sisters should remain together. She found them bonded to each other and opined that splitting them up is not an option.
After recounting the facts in meticulous detail and carefully setting out the applicable law, Judge Guida explained his reasons for terminating G.D.'s and M.B.'s parental rights and releasing the children for adoption by the foster parents. He found both parents have endangered the welfare of the children and continue to do so; M.B. by her volatile behavior, many false accusations against the foster parents and her continued inability to provide stable housing for them, and G.D. by his substance abuse, apparent criminal activities, immaturity and inability to provide them stable housing.
The judge found the record overwhelmingly clear that neither M.B. nor G.D. is a currently fit parent as neither had been able to eliminate the harm to the children by placing the children's needs above their own. Despite the Division's efforts to assist both M.B. and G.D. over five years, neither parent could provide the children with stable housing and the expert testimony made clear that their future prognosis for doing so was poor.
Judge Guida found the Division had provided M.B. and G.D. "an abundant amount of services to address [their] parenting and psychological issues" since July 2008. The judge rejected G.D.'s arguments that the Division failed to act in the best interests of the children by failing to consider his father and his long-time companion as a suitable placement for them. The judge found that the paternal grandparents did not present themselves as potential resource parents when Sarah was removed in July 2008 or when Dena was removed at birth in December 2009. "Instead, they waited until the autumn of 2012, more than four years after [Sarah] was removed from [G.D. and M.B.'s] custody to express their interest in caring for the children and commencing the licensing process [to become resource parents]. During those four years, [Sarah] and [Dena] were placed in foster care when they could have been placed with their family."
The judge rejected their testimony that they did not receive the letter in November 2009 inquiring about their interest in serving as a permanent placement for the girls or the January 10 letter ruling them out because they failed to respond. He also found their testimony that they did not want to take the children because G.D. was attempting to regain custody did "not make rational sense. . . . [G.D.'s father and his companion] could have been resource parents for the children while [G.D.] was engaged in services, with their understanding that they would willingly and gladly return the children to [G.D.'s] custody if and when reunification occurred." Although the paternal grandparents were licensed resource parents by the time of trial, the judge rejected awarding custody to them because they "have had very little contact with [Sarah] and [Dena] during the course of the litigation, having visited with the children on only five occasions."
Finally, the judge found that:
it is acutely apparent that the Division has met its burden of proof by presenting clear
and convincing evidence that termination would not do more harm than good. Its evidence, in the form of testimony and written reports, was most persuasive and revealed that separating [Sarah] and [Dena] from their current caretakers will cause serious and enduring emotional and psychological harm to them. Removal from the resource parents is not an option for [Dena], nor is separating the children from each other a viable option.
The law governing termination of parental rights is well settled. The standards are codified and set forth in a four-prong test. N.J.S.A. 30:4C-15.1a. Termination is permissible only if the Division presents 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;
(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.
[Ibid.]
The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). Our review of the trial court's application of these standards to the facts of record is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted).
Applying these standards to this voluminous record convinces us that Judge Guida's careful findings are amply supported by the credible testimony. M.B.'s and G.D.'s contentions to the contrary are plainly inaccurate. Because they give us no cause to intervene, we affirm substantially for the reasons set forth by Judge Guida in his thorough and thoughtful written opinion of April 1, 2014.
Given our disposition, we deny G.D.'s recently filed motion for visitation pending appeal.
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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