Opinion
DOCKET NO. A-3942-15T3
12-05-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF P.P., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer Russo-Belles, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Cory H. Cassar, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-0030-15. Joseph E. Krakora, Public Defender, attorney for appellant (Albert M. Afonso, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer Russo-Belles, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Cory H. Cassar, Designated Counsel, on the brief). PER CURIAM
H.P. appeals from an order entered by the Family Part on April 29, 2016, terminating his parental rights to the minor child, P.P. We affirm.
We briefly summarize the relevant facts. H.P. is the biological father of P.P., and A.M. is his biological mother. P.P. was born in April 2014. At that time, H.P. was incarcerated, although he was released a short time thereafter. H.P. has three other children who are not parties to this litigation. A.M. has another child, A.D., whose father is deceased.
The Division of Child Protection and Permanency (Division) became involved with A.M. in May 2013, when it received a report that illegal substances were being used in the home. A.M. tested positive for marijuana, and the Division substantiated her neglect as to A.D. The Division thereafter provided services to the family. In October 2013, the Division received another report about the possible use of illegal substances in the home. The Division then learned that A.M. was pregnant with P.P. and H.P. was the child's father.
In March 2014, the Division filed a verified complaint seeking care and supervision of A.D. based on its continued concerns about substance abuse. In April 2014, the court added P.P. to the litigation and ordered that A.D. and P.P. continue in the Division's care and supervision, but allowed the children to remain in A.M.'s custody. The court ordered that, upon his release from jail, H.P. must complete psychological and substance abuse evaluations, and submit to random drug and alcohol screens. The court further ordered that H.P.'s visitation with P.P. would be supervised.
Shortly after P.P. was born, A.M. tested positive for opiates. In July 2014, the court determined that H.P. was a part of the family, and he was entitled to certain services. The Division offered substance abuse treatment, access to Family Preservation Services (FPS), and access to the Healthy Families program. H.P. did not participate in the services.
In August 2014, the Division received another report of substance abuse in the home, and during a follow-up investigation, A.M. again tested positive for opiates. The court authorized the removal of P.P. and A.D. from the home. Thereafter, the Division offered H.P. and A.M. an array of services.
In May 2015, the court approved the Division's permanency plan for the children, which called for the termination of H.P. and A.M.'s parental rights, followed by adoption. In June 2015, the Division filed its guardianship complaint. The following month, the children were placed with A.D.'s paternal cousin in South Carolina. In February 2016, A.M. surrendered her parental rights to P.P. and A.D.
In April 2016, the court conducted a trial on the Division's guardianship complaint for the termination of H.P.'s parental rights to P.P. Jessica Davis, the Division's worker assigned to the case, testified. Davis said that when the children were removed, the conditions of the home were deplorable. Davis also noted that H.P. had been incarcerated from time to time during the Division's involvement with the family.
She stated that H.P. had completed a psychological/parenting capacity evaluation, but did not participate in other services that were offered to him. H.P. had been referred five times for substances abuse evaluations, but missed fifteen scheduled appointments. H.P. did not comply with the Division's random drug screen program.
Davis also said that H.P. failed to maintain a stable home for P.P., and moved back and forth from places where the family was living to his mother's home. H.P. did not maintain contact with the Division, and the Division was required to search for him. Davis also explained that H.P. had been entitled to weekly, two-hour supervised visits at the Division's office, but in the year and a half before the trial, H.P. had only visited P.P. eight times. H.P. often was late for visits or ended them early.
The Division's expert, Dr. James L. Loving, testified that P.P. showed signs of troubling behavior due to his complicated placement history and various "moves" while in H.P. and A.M.'s custody. P.P. was showing signs of "attachment problems[,]" which indicated that he is at "risk for an insecure attachment style," as well as the risk of relationship and attachment problems as he grows older.
Dr. Loving said P.P.'s resource parents would be able to handle these risks. They were providing a "nurturing environment" to P.P. and A.D. In the bonding evaluation, P.P. had smiled and laughed. He was animated and went spontaneously to his resource parents "for affection, for comfort, and for play." Dr. Loving stated that these were "striking signs of attachment" with the resource parents.
Dr. Loving opined that because H.P. had not seen P.P. for over a year, H.P. did not have "any level of attachment" with the child. Termination of H.P.'s parental rights would not be "emotionally damaging" to P.P. because H.P. had "little or no relationship" with the child up until that time. Dr. Loving further opined that if P.P. were to experience difficulties, his resource parents would be able to help him. He also said that if P.P. was to be separated from his resource parents, he would be at a high risk of harm.
After hearing the testimony, the trial judge placed an oral decision on the record. The judge found that the Division had presented clear and convincing evidence which satisfied all four prongs of the best-interest-of-the-child test for termination of parental rights, which is codified in N.J.S.A. 30:4C-15.1(a). The judge entered an order dated April 29, 2016, terminating H.P.'s parental rights to P.P. This appeal followed.
On appeal, H.P. does not challenge the trial court's finding that the Division established prongs one, two, and four of the test for termination of parental rights. He argues, however, that the Division failed to establish the third prong of the test. He contends the Division did not prove by clear and convincing evidence that it made reasonable efforts to correct the circumstances that led to the child's removal from his care.
The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 2 69 N.J. Super. 172, 188 (App. Div. 1993)). Factual findings of the Family Part "are entitled to considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we give no "special deference" to the court's "interpretation of the law." Ibid. (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)).
The Division may initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the Division establishes the criteria for termination of parental rights established in N.J.S.A. 30:4C-15.1(a) if:
(1) [t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) [t]he 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) [t]he 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) [t]ermination of parental rights will not do more harm than good."The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
[N. J.S.A. 30:4C-15.1(a).]
As noted, H.P. only challenges the trial judge's finding regarding prong three of the best interests standard. In this regard, we note that N.J.S.A. 30:4C-15.1(a)(3) requires that the Division make reasonable efforts to address the circumstances that led to the child's removal, and "reasonable efforts" vary depending on the circumstances of the case. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Furthermore, the reasonableness of the Division's efforts is not determined by their success or failure. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).
Here, H.P. argues that the Division failed to provide him with services when he was incarcerated, including substance abuse evaluations and drug screenings. He contends the trial judge erred by considering the services that the Division provided to A.M. before he was involved. He contends the Division failed to carry through on the recommendations of Dr. Jacqueline Moyerman, who conducted the psychological/parenting capacity evaluation in November and December 2014. H.P. further argues that the Division should have offered him vocational assistance for job placement, as well as skills training to learn how to access community resources to help him with housing and employment.
We are not persuaded by these arguments. The record shows that during the Division's involvement with the family, H.P. was incarcerated sporadically and for relatively brief periods of time. With the exception of his incarceration in June 2014, H.P. did not inform the Division he was in jail. In any event, H.P. generally failed to participate in services when he was not incarcerated, and there is nothing in the record to show he would have done so if the Division had been informed of his incarcerations and was able to provide services to him in jail.
We also find no merit in H.P.'s contention that the trial judge gave undue weight to the services that the Division provided to A.M. The judge cannot be faulted for noting the services that the Division provided to the family. It was appropriate for the Division to concentrate its initial efforts upon A.M., who was P.P.'s custodial parent when the child was removed from the home. Nevertheless, the record supports the court's determination that the Division made reasonable efforts with regard to H.P. The Division provided him with an array of services, and except for the psychological/parenting evaluation, he failed to avail himself of those services.
The record also does not support H.P.'s contention that the Division unreasonably failed to provide services recommended by Dr. Moyerman. After the doctor issued her report, the caseworker discussed the recommendations with H.P. However, H.P. then stopped visiting with P.P. and he disappeared for seven months. At that point, H.P. expressed his anger at P.P.'s placement in South Carolina. The Division then lost contact with him for another three months.
Furthermore, Dr. Moyerman's recommendations were based in part on H.P.'s assertion that he did not have a substance abuse problem, but he refused to submit to court-ordered substance abuse evaluations throughout the two years the matter was in court. Dr. Moyerman also recommended supervised visits with the child. However, H.P. was entitled to weekly visitation, but as noted previously, for a period of almost a year and a half, H.P. only visited the child eight times. In addition, the Division attempted to assist H.P. with vocational training at Social Services, but he did not attend.
We are convinced that there is sufficient credible evidence in the record to support the trial judge's finding that the Division made reasonable efforts to address the circumstances that led to P.P.'s placement. The record supports the judge's finding that the Division provided H.P. with "services over and above what are normally provided," and the services had no "effect whatsoever" on H.P.
Therefore, we reject H.P.'s contention that the Division failed to establish the third prong of the best interests standard. Since H.P. does not challenge the court's findings on the other three prongs of the test, we affirm the trial judge's order terminating H.P.'s parental rights.
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION