DCPP VS. C.C., IN THE MATTER OF THE GUARDIANSHIP OF R.C. AND J.N. (FG-20-0025-17, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4608-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
C.C.,
Defendant-Appellant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF R.C. and J.N.,
Minors.
_______________________________
Submitted June 6, 2019 – Decided June 20, 2019
Before Judges Simonelli and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FG-20-0025-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Beryl Vurnen Foster-Andres, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Frank Robinson Moceri, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (James Joseph Gross, Designated
Counsel, on the brief).
PER CURIAM
Defendant, C.C. (Carla), appeals from a May 15, 2018 judgment of
guardianship terminating her parental rights to her minor children, R.C. (Ryan),
J.N. (John).1 We affirm.
We discern the following facts from the record. Carla is the mother of
three boys, Ryan, John and Jim. Jim is in the custody of his biological father
and is not a subject of this litigation. The Division of Child Protection and
Permanency (Division) first became involved with this family in June 2015 after
receiving referrals that the children were inadequately supervised because Carla
left them with elderly relatives and her young sibling. It was also alleged that
1
We use pseudonyms to protect the identity of the family pursuant to Rule 1:38-
3(d)(12) and for ease of reference.
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Carla was abusing drugs. Carla continued to leave the children with her elderly
relatives or with her younger sibling, and this continued pattern of behavior
contributed to an established finding of neglect. The Division did not
immediately take custody of the children and allowed Carla to place Ryan with
a family friend and John with his paternal grandmother, R.W. Carla was ordered
to undergo a substance abuse evaluation and other services while the children
remained under the care and supervision of the Division and resided with their
resource parents.
Carla was noncompliant with numerous ordered services. She visited the
children but did not assist the resource parents. From the inception of the
litigation, the Division continued to provide and recommend services to Carla
to facilitate reunification. Although Carla underwent a psychiatric evaluation,
she did not engage in any of the services recommended by the psychiatrist.
Ultimately, the Division took custody of the children, but they remained wi th
their resource parents. On January 25, 2017, due to Carla's resistance to
services, the Division changed its permanency goal to termination of parental
rights followed by adoption. On March 8, 2017, the Division filed its complaint
for guardianship. John's biological father was added as a defendant, but he
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executed an identified surrender and John remained with his grandmother. The
Division was unable to determine the identity of Ryan's biological father.
Previously, on December 3, 2016, Carla gave birth to another child, Jake.
Jake remained in Carla's custody despite her resistance to offered services. She
was living with relatives and a boyfriend, A.M., and began to undergo
counseling. On June 11, 2017, Carla left Jake alone with A.M. An autopsy
determined Jake died that day from closed head trauma with extensive anoxic
encephalopathy and the death was ruled a homicide. The Division substantiated
A.M. for abuse. Notwithstanding Jake's death, Carla continued to live with A.M.
The Division suspended Carla's visits with Ryan and John. The Division
arranged for a psychological evaluation as well as parental and caregiver
bonding evaluations with Leticia Calendar, Ph.D.
The guardianship trial commenced on May 14, 2018. During the trial, the
Division presented the testimony of two witnesses, the Division caseworker,
Janice Braxton, and Calendar. Carla did not attend the trial.
Braxton's testimony chronicled the Division's involvement with the
family. She testified about the numerous services offered to Carla, Carla's
resistance to engagement and her sporadic visits with her children. Braxton also
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testified about Carla's unwillingness to separate herself from A.M. for the
protection of her children.
Calendar, the Division's expert in psychology and bonding, conducted
evaluations based on observations between Carla and her children and the
children and their resource parents. Calendar noted John had an insecure
attachment to Carla but a healthy bond to his resource parent. Ryan had no bond
with Carla and a healthy bond with his resource parent. Calendar opined it
would be harmful to remove the children from their current placements.
The trial court entered a judgment of guardianship on May 15, 2018, after
rendering detailed findings in an oral opinion. This appeal followed.
On appeal, Carla argues the Division did not prove the four prongs of
N.J.S.A. 30:4C-15.1(a) because she never harmed her children, she completed a
number of services and she was denied a fair trial. In particular, she argues there
was no evidence of neglect or abuse when her children were removed from her
care, her boyfriend was not indicted for her son's death and there was no
evidence she ever committed harm to her children when she visited with the m.
She asserts she completed a substance abuse program and other services and that
the substance abuse evaluations and psychological evaluations are not
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ameliorative. Finally, she argues the judge erred by failing to admit the bonding
evaluations into evidence. We reject all of these arguments.
A.
"A parent's right to enjoy a relationship with his or her child is
[fundamental and] constitutionally protected." In re Guardianship of K.H.O.,
161 N.J. 337, 346 (1999). However, "[p]arental rights . . . are not absolute. The
constitutional protection surrounding family rights is tempered by the State's
parens patriae responsibility to protect the welfare of children." Id. at 347.
Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to
terminate parental rights on the basis that such termination is in the "best
interests of the child" 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 [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
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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.
"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." K.H.O., 161 N.J. at 348.
"Appellate review of a trial court's decision to terminate parental rights is
limited, and the trial court's factual findings 'should not be disturbed unless they
are so wholly unsupportable as to result in a denial of justice.'" In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship
of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are obligated to accord
deference to the trial court's credibility determinations based upon the judge's
opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394,
412 (1998).
To satisfy the first prong of the best interests standard, the parental
relationship "must be one that threatens the child's health and will likely have
continuing deleterious effects on the child." K.H.O., 161 N.J. at 352. Generally,
"proofs in termination cases 'focus on past abuse and neglect and on the
likelihood of it continuing.'" N.J. Div. of Youth & Family Servs. v. F.H., 389
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N.J. Super. 576, 609 (App. Div. 2007) (quoting In re Guardianship of J.C., 129
N.J. 1, 10 (1992)). Moreover, in guardianship and adoption cases, the child's
need for permanency and stability is central. K.H.O., 161 N.J. at 357.
Additionally, injury to the child's growth and development should not be the
result of "economic deprivation or lack of resources but to a fundamental lack
of the most precious of all resources, the attention and concern of a caring
family." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986).
After fully reviewing the evidence presented and making credibility
determinations, the trial judge determined the safety, health or development of
John and Ryan were in danger. The judge found the danger was due to Carla's
irresponsible actions, including her unaddressed substance abuse, ineffective
participation in services and her decision to reside with her boyfriend after her
infant child died from blunt force trauma to the head while in his care. A parent's
continued failure to provide a safe and stable home to her children constitutes
harm that can satisfy the first and second prongs of the best interest test. N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 451 (2012). We are
satisfied that the record fully supports the trial judge's findings.
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B.
"The second prong of the [test] relates to parental unfitness." K.H.O., 161
N.J. at 352. There are two ways to establish this prong: (1) the State must show
that "the child's health and development have been and continue to be
endangered" and "the harm is likely to continue because the parent is unable or
unwilling to overcome or remove the harm"; or (2) "the parent is unable to
provide a safe and stable home for the child and that the delay in securing
permanency continues or adds to the child's harm." Id. at 348-49.
The trial judge considered the expert testimony of Calendar and agreed
that Carla's longstanding history and behavior demonstrate she is unwilling or
unable to care for her children, and the Division had demonstrated Carla would
not be able to parent in the near future. We are satisfied that the record contains
clear and convincing evidence establishing prong two.
C.
The third prong requires the Division to make reasonable efforts to
provide services in order to help the parent correct the circumstances that led to
the child's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). Reasonable
efforts will vary with the circumstances. F.H., 389 N.J. Super. at 620. This
factor requires the Division to make "diligent efforts to reunite the family."
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K.H.O., 161 N.J. at 354. A "parent's failure to become a caretaker for her
children is not determinative" of whether the third prong has been met because
the reasonableness of the Division's efforts "is not measured by their success."
In re Guardianship of DMH, 161 N.J. 365, 393 (1999).
The trial court found reasonable efforts, outlining a history of therapeutic
services, visits, evaluations, paternity tests, offers of transportation assistance
and other services. The trial judge's findings as to prong three are established
by clear and convincing evidence in the record.
D.
The fourth prong, that termination of parental rights will not do more harm
than good, "serves as a fail-safe against termination even where the remaining
standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 609 (2007). "The question ultimately is not whether a biological mother or
father is a worthy parent, but whether a child's interest will best be served by
completely terminating the child's relationship with that parent." N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be
returned to the parent without endangering the child, the parent's right to
reunification takes precedence over the permanency plan. A.W., 103 N.J. at
608.
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That the child has bonded with the foster parent does not alone justify the
termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375
N.J. Super. 235, 263 (App. Div. 2005). When parents expose "a child to
continuing harm . . . and [are] unable to remediate the danger to the child, [who]
has bonded with the foster parents who have provided a nurturing and safe home,
. . . termination of parental rights likely will not do more harm than good." E.P.,
196 N.J. at 108.
In establishing this prong, the State should adduce testimony from a "well
qualified expert who has had full opportunity to make a comprehensive,
objective, and informed evaluation of the child's relationship with the
[biological and] foster parent[s]." J.C., 129 N.J. at 19. "The question . . . is
whether, after considering and balancing the two relationships, the child will
suffer a greater harm from the termination of ties with her natural parents than
from the permanent disruption of her relationship with her foster parents."
K.H.O., 161 N.J. at 355.
In addition, the Division must prove the parent's actions or inaction
contributed to the forming of the bond between the child and the foster parents,
and "the harm caused to the child from severing that bond rests at the feet of the
parent." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80
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(App. Div. 2010). "A child's need for permanency [and stability] is an important
consideration[.]" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
281 (2007).
In the present case, we are satisfied the trial court properly determined
that there was sufficient evidence to satisfy prong four. The trial judge
considered evidence as to each of the two children individually, finding by clear
and convincing evidence that each was flourishing in their foster homes, and
Carla had not made sufficient progress to safely parent either child or ameliorate
harm to them if placed in her care. We discern no reason to disturb that
determination.
Affirmed.
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