Opinion
DOCKET NO. A-1617-14T1
06-22-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.R., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis W. Skinner, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan J. Saraiva, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R. (Maria Emilia Borges, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-25-14. Joseph E. Krakora, Public Defender, attorney for appellant (Louis W. Skinner, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Susan J. Saraiva, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R. (Maria Emilia Borges, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant L.R. (Lucas) appeals from the December 1, 2014 Family Part judgment of guardianship, which terminated his parental rights to A.R. (Arthur) and awarded guardianship to Arthur's older brother and his fiancée. Defendant contends that the Division did not demonstrate by clear and convincing evidence the four prongs of the best interest of the child test, N.J.S.A. 30:4C-15.1(a). The Law Guardian supports termination and urges us to affirm the trial judge's determination. Having reviewed the record in light of the contentions of the parties and applicable law, we affirm.
We use pseudonyms to protect the privacy of the parties and the minor.
We discern the following from the record. Lucas is the father of Arthur, born in May 2000. The Division first became involved with the family in July 2009 when it was reported that Lucas was "always drunk" around Arthur, that there were "occasions where [Arthur] was locked out of the home," and Lucas "has also driven drunk with [Arthur] in his lap." The Division did not substantiate abuse, but requested that Lucas undergo drug screens, which tested negative, and a substance abuse evaluation, which recommended that Lucas attend a Level I substance abuse program. Lucas agreed to attend, but was unable due to a lack of insurance. The Division also implemented a Safety Protection Plan to have family friends supervise Lucas' parenting of Arthur.
Arthur's mother is deceased.
Lucas is also the father of two adult-aged children.
In January 2011, the Division received another referral alleging that Arthur was in the driver's seat "about to drive off" while Lucas sat in the passenger seat of the car. Although the Division did not substantiate the referral, it nevertheless recommended that Lucas attend a substance abuse treatment program. On November 13, 2012, the Division received a report from police of a dispute between Lucas and Arthur. The police informed the Division that in their view Lucas was intoxicated; however, no drug or alcohol tests were performed. During its investigation, Lucas' girlfriend, M.M. (Melissa), reported that she was the sole provider for Arthur, and that he lived with her except for the times when he went to stay with his siblings. She also told the Division that she had a restraining order against Lucas, which prohibited him from being alone with her or Arthur. The Division substantiated abuse and neglect based in part on Lucas' abuse of alcohol, and executed an emergency Dodd removal, placing Arthur in the care of his older brother and his fiancée.
N.J.S.A. 9:6-8.29(a). --------
Following Arthur's removal, the Division required Lucas to take random drug screens, which were negative, and also provided several services including therapy for Lucas and Arthur at New Bridge Child and Family Services. The Division also requested that Lucas undergo substance abuse evaluations. Following one such evaluation with St. Clare's Hospital, Lucas was referred to an Intensive Outpatient Program (IOP) on March 4, 2013. Lucas initially attended treatment, but was terminated from the program in April 2013 because he "refused to admit alcohol use of any kind in the face [of] evidence." Lucas also "refused to submit to breathalyzer and/or USD" and was "unable to be honest about alcohol use, blaming [the Division] and others." Consequently, St. Clare's opined that Lucas needed a higher level of care such as inpatient treatment.
Lucas continued to visit with Arthur on a regular basis and also attended therapy sessions. However, in May 2013, Arthur indicated that he no longer wished to continue with therapy or visits based on Lucas' refusal to admit that he was an alcoholic or to acknowledge that his alcoholism had affected their relationship. Arthur told the Division that he believed Lucas was continuing to drink, and indeed, the Division received similar reports from Arthur's resource parents and several of the service providers. The Division attempted to address these issues with Lucas to no avail.
On August 31, 2013, Lucas completed inpatient treatment at Turning Point. Upon his discharge, the program recommended that he attend an IOP at Hope House for a minimum of ninety meetings in ninety days. Other than making two phone calls to the program, he made no attempts to follow up. Additionally, Lucas requested unsupervised visits with Arthur, but the Division explained that unsupervised visits were premature. As a result, Lucas refused to attend visits or comply with the Division's services.
A fact-finding hearing was held on October 16, 2013, wherein the trial court determined that the Division had proven abuse or neglect under N.J.S.A. 9:6-8.21. Subsequently, from November 2013 through March 2014, Lucas was incarcerated for DUIs based on conduct occurring in 2009 and 2011. During his incarceration, the Division terminated Lucas' services. However, Lucas informed the Division that he was attending AA meetings but failed to provide any documentation of such attendance. During Lucas' incarceration, Arthur began to visit and communicate with his father again.
Upon his release, Lucas seemed amenable to restarting services, including supervised visitations, family meetings, and therapy sessions. However, Lucas soon advised the Division that he would not continue visitation unless it was unsupervised, and refused to participate in services until he was given unsupervised visitation. The Division attempted to engage Lucas and continued to make referrals for services. Following a permanency hearing, the trial court found that termination of parental rights followed by adoption was an appropriate course of action based on Lucas' refusal to comply with services and "substance abuse treatment recommendations." Consequently, the Division filed this guardianship action.
Judge Maritza Byrne held the guardianship trial over the course of four days. At the trial, Damian Johnson, the current caseworker; Kristen Sutherland, the former caseworker; and Dr. Robert P. Kanen, Ph.D., an expert in psychology and bonding, testified for the Division. Additionally, Arthur and Lucas testified, and Lucas also called Harold Lopez, a probation officer, to testify as to Lucas' two negative drug screen tests during the course of the trial. Lucas did not present any expert testimony or introduce any exhibits.
On November 19, 2014, Judge Byrne issued a comprehensive written opinion finding that the Division had proven each prong of the best interests of the child analysis by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a), and as such, terminated Lucas' parental rights to Arthur. Even so, the judge permitted visitation to continue between Arthur and Lucas, noting that Arthur's resource parents were open and committed to maintaining Arthur's relationship with his father.
The judge accepted Lucas' claim that he had been sober for a year notwithstanding the fact that he could not recall "his specific sobriety date," did not have an AA sponsor, and did not know "what step he is working on in AA currently[.]" Even so, the judge found that Lucas had endangered Arthur's safety, health, and development due to his chronic alcoholism, his refusal to admit that he had an alcohol problem that negatively affected his life and that of Arthur, and his refusal to comply with services recommended by the Division.
Further, the judge determined that Lucas was unwilling or unable to remedy the harm that prompted Arthur's removal. Specifically, the judge noted that despite the seriousness of the proceedings, Lucas had no plans to change his behavior or parenting style and, indeed, testified that his parenting plan significantly relied on his girlfriend "help[ing] care for [Arthur] extensively[,]" which was the same plan that "he had before [Arthur's] removal." The judge also found Dr. Kanen's testimony to be credible and uncontroverted that Arthur "would suffer greater harm . . . if returned to [Lucas'] care because of [Lucas'] level of denial and his inability to treat his chronic alcoholism i[n] any consistent manner."
Additionally, the judge found that the Division provided numerous services to Lucas and that they were targeted to help him correct the circumstances that led to Arthur's removal, but that Lucas attempted to use his compliance with services "as leverage" to get unsupervised visitations with Arthur. Despite Lucas' failure to comply with services, the judge noted that the Division continued to work with Lucas by referring him to different services. The judge also determined that the Division had appropriately explored alternatives to termination of rights, and correctly reasoned that kinship legal guardianship was not appropriate because Arthur's resource parents were willing to adopt as well as Lucas' refusal to work with one of the resource parents. The judge also noted that the Division considered placing Arthur with Melissa, but that she was ruled out because she refused to complete the licensing process.
Finally, the judge determined that termination of Lucas' parental rights would not do more harm than good, due in large part to Arthur's need for stability and permanency "at this juncture of [his] life[.]" Specifically, the judge reasoned that Arthur needs stability and consistency because adolescence can be a "tumultuous" period, particularly in light of the fact that he has already lost one parent and has "never processed that loss[.]" While recognizing that Lucas and Arthur are bonded, the judge accepted Dr. Kanen's testimony that Lucas "cannot provide the stability and security that [Arthur] needs" and that Arthur has been "very clear, from the beginning, that he would like his father to get the treatment [he] needs." The judge also noted that Arthur's bond with his resource parents would help to ameliorate any harm caused by the termination of Lucas' rights, particularly in light of the fact that they encouraged Arthur to maintain a relationship with Lucas.
From our independent review of the record, we are convinced that substantial evidence exists to support the judge's termination of Lucas' parental rights. We affirm essentially for the reasons provided in Judge Byrne's thorough opinion of November 19, 2014. We add only the following comments.
In a guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007). When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing by 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;These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
(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.
On appeal, our review of Judge Byrne's decision is limited. Ordinarily, we will defer to a trial judge's factual determination unless those findings "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted).
We owe this deference to the trial judge because he or she has had "the opportunity to make first-hand credibility judgments" and to gain "a 'feel of the case'" over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Gauged by those standards, we find no basis to disturb Judge Byrne's credibility determinations, her factual findings, or her conclusion to terminate Lucas' parental rights.
The first prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(1) requires us to "determine whether the 'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)); see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The second prong relates to parental unfitness and requires the court to decide "'whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). As to the first and second prongs, the evidence is clear and convincing that Lucas' continual failure to address the extent of his alcohol abuse, and further, his continued denial that he has ever had an alcohol problem or that it has had an effect on Arthur, coupled with his refusal to comply with services endangered Arthur. Even accepting Lucas' testimony that he has been sober for a year, the case law makes clear that prongs one and two may be satisfied where the defendant has a "significant and longstanding substance abuse histor[y.]" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004).
Further, there was clear and convincing evidence in the record that Lucas has harmed Arthur by withdrawing "the most precious of all resources[,]" a parent's attention and care. A.W., supra, 103 N.J. at 613; see also K.H.O., supra, 161 N.J. at 352-54. It is undisputed that since 2012, Arthur has been in the custody of the Division and that prior to the Division's involvement, Melissa was Arthur's primary provider and caretaker for almost two years. Moreover, Lucas refused to visit with Arthur for several periods after the Division refused to comply with his demands that the visits be unsupervised. See D.M.H., supra, 161 N.J. at 380 (finding harm to the child where the defendant failed to visit the children for six months); see also N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004).
The third prong contemplates that the Division will make reasonable efforts to assist the parent to correct and overcome the circumstances that led to the removal of the child. K.H.O., supra, 161 N.J. at 354. Judge Byrne found that the Division had provided Lucas with a wide array of services. We agree. The Division worked intensively with Lucas to promote reunification. All of the services provided by the Division were designed to remediate the cause of Arthur's removal from Lucas' care and custody, namely Lucas' chronic alcoholism. Nevertheless, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393.
Additionally, the record shows that the Division considered alternatives to termination, including exploring and ruling out Melissa as a resource parent as well as Kinship Legal Guardianship (KLG). KLG is an appropriate alternative in cases where "adoption of the child is neither feasible nor likely[.]" N.J.S.A. 3B:12A-6(d)(3)(b). "[W]hen the permanency provided by adoption is available, [KLG] cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3)." P.P., supra, 180 N.J. at 513. We agree with Judge Byrne that KLG was properly ruled out considering that Arthur's resource parents have continually expressed a willingness to adopt him in addition to the strained relationship between the resource parents and Lucas.
Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355. In analyzing the evidence in light of this prong, Judge Byrne relied heavily on the testimony and psychological evaluation report of Dr. Kanen, which she found to be compelling and credible, that Arthur "would suffer greater harm [] if returned to [Lucas'] care[,]" notwithstanding their bond because Lucas has continued to deny that he is an alcoholic and has refused to comply with treatment recommendations. Further, Judge Byrne properly took into account Arthur's wish to live with Lucas, but only if he sought treatment. We agree with Judge Byrne that Arthur's need for permanency and stability outweighed the harm that would accrue by terminating Lucas' parental rights. Arthur has already lost one parent and cannot wait for Lucas to become fit. C.S., supra, 367 N.J. Super. at 111. We also note that any harm resulting from termination of Lucas' parental rights would be ameliorated by Arthur's bond with his resource parents, who have committed to maintaining a relationship between Arthur and Lucas. See D.M.H., supra, 161 N.J. at 386 (approving "open-adoption[s]" wherein the adoptive parents foster and permit "children to maintain their connection with their biological [parent].").
In sum, in light of our highly deferential standard of review, we conclude that Judge Byrne did not err in determining that clear and convincing evidence showed that Arthur's best interests require termination of Lucas' parental rights so that he can be adopted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION