DCPP VS. A.W. AND P.G.C., IN THE MATTER OF THE GUARDIANSHIP OF C.C. (FG-19-0025-17, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5219-17T2
A-5230-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.W. and P.G.C.,
Defendants-Appellants.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF C.C.,
a Minor.
_____________________________
Submitted September 23, 2019 – Decided November 1, 2019
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0025-17.
Joseph E. Krakora, Public Defender, attorney for
appellant P.G.C. (Louis W. Skinner, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant A.W. (Ruth Ann Harrigan, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Victoria Almeida Galinski, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Olivia Belfatto Crisp, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
In these consolidated cases, A.W. (Ashley) and P.G.C. (Patrick)1 appeal
from the Family Part's June 27, 2018 order terminating their parental rights to
their son, C.C. (Craig), then just shy of seven years old. The order freed Craig
for adoption by his foster parents, with whom Craig had lived for over two-and-
a-half years.
Ashley and Patrick contend the Division of Child Protection and
Permanency failed to establish any of the four prongs of the best interests test.
See N.J.S.A. 30:4C-15.1(a). Ashley also contends the court committed plain
1
For the reader's convenience, and to protect the child's privacy, we refer to the
parties and child by pseudonymous first names.
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2
error in considering hearsay embedded in various medical and treatment records;
and her trial counsel was ineffective in failing to object. The Law Guardian
joins the Division in supporting the judgment. We affirm substantially for the
reasons set forth by Judge Michael C. Gaus in his comprehensive written
opinion.
Judge Gaus found the Division proved, by clear and convincing evidence,
all four prongs of N.J.S.A. 30:4C-15.1(a):
(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.
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The judge relied on the Division witnesses: Mark Singer, Ph.D., who
conducted psychological and bonding evaluations of the parents, and a bonding
evaluation of the foster parents; Preston Gagg, a Division caseworker who
worked with defendants from late 2014 until late 2016; Division adoption and
training supervisor Kelly Weymer, who worked with defendants after the
guardianship complaint was filed in November 2016; and two forensic
toxicologists, who testified about defendants' positive test results for substance
abuse. Neither parent testified or presented witnesses. Patrick did not appear
for trial. Ashley attended part of the trial, but appeared to be under the influence
of drugs.
We find ample support for, and presume the reader's familiarity with, the
detailed findings of fact in Judge Gaus's eighty-three page opinion. In summary,
Judge Gaus credited the Division's witnesses and found that neither parent was
capable of safely and effectively parenting Craig. The court recognized that
Craig's autism presented a greater than usual need for consistent and stable
parenting, to assure his emotional and cognitive development. The court
described Craig's improved progress under the consistent care of his foster
parents.
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The court found that Ashley's incapacity arose from her persistent mental
illness, and abuse of prescription and illicit drugs; her inability to consistently
and successfully attend therapy or treatment for either, as offered by the
Division; and her continual denial of the shortcomings that led to Craig's
removal. She failed to provide a stable home; failed to assure Craig's regular
attendance at school before the child was removed from the home; and was
inconsistent with parenting time after he was removed.
Much like Ashley, Patrick's incapacity to parent arose from his abuse of
alcohol and of drugs, often obtained from Ashley; his failure to consistently and
successfully attend treatment as offered by the Division; and his minimization
of his and Ashley's shortcomings. Patrick failed to assume responsibility for
Craig's schooling and other needs when Ashley did not do so. He did not
appreciate Craig's special needs. He attended parenting time inconsistently and
was unable to provide a stable home for his son.
Relying on Dr. Singer's evaluations, Judge Gaus concluded that Craig had
formed a strong emotional bond with his foster parents, whom he viewed as
mother and father. If separated from his foster parents, Craig would suffer
enduring harm that defendants could not mitigate. By contrast, the foster parents
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could help Craig overcome any harm he would suffer from the loss of his
attachment to defendants.
We exercise limited review of the trial court's decision. In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial court's
fact-findings, and its exercise of expertise in family matters. N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J.
394, 411-13 (1998). We review legal issues de novo. See Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"We will not disturb the family court's decision to terminate parental
rights when there is substantial credible evidence in the record to support the
court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008). Defendants essentially challenge the factual basis for the court's
determinations. However, after reviewing the record and applicable law in light
of the arguments advanced on appeal, we discern no basis to disturb the court's
findings, which were supported by substantial credible evidence.
As for prongs one and two – which are interrelated, In re Guardianship of
DMH, 161 N.J. 365, 378-79 (1999) – defendants misplace reliance on the fact
that Craig never suffered physical harm while in their care; he remained attached
to his parents; and they interacted positively with them during visits. "Courts
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need not wait to act until a child is actually irreparably impaired by parental
inattention or neglect." Id. at 383. It is sufficient to prove the risk or danger of
harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440
(App. Div. 2001). "Serious and lasting emotional or psychological harm to
children as the result of the action or inaction of their biological parents can
constitute injury sufficient to authorize the termination of parental rights." In re
Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Judge Gaus found, based on
substantial evidence in the record, that defendants' parental shortcomings –
including their persistent substance abuse and her untreated mental illness –
placed Craig at substantial risk of developmental harm.
Defendants minimize or excuse their failure to complete treatment
programs, and insist they were able and willing to correct any harms to Craig.
However, there was ample evidence to support the court's conclusion, based on
defendants' inconsistent rehabilitation and treatment efforts, that they were
unable or unwilling to provide Craig a safe and stable home; and separating
Craig from his foster parents would cause him great emotional and
psychological harm. See e.g. F.M., 211 N.J. at 450-51 (stating that untreated
mental illness that threatens harm to the child may disqualify a parent from
raising a child); K.H.O., 161 N.J. at 353 (stating "the second prong may be met
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by indications of parental dereliction and irresponsibility, such as the parent's
continued or recurrent drug abuse, the inability to provide a stable and protective
home, [and] the withholding of parental attention and care"); A.G., 344 N.J.
Super. at 438 (stating that blamelessness of a mentally ill parent "is not sufficient
to tip the scale in [his or her] favor" if the illness impairs the ability to parent).
Regarding prong three, defendants also contend the Division failed to
provide them with adequate or sufficiently tailored treatment programs. "The
diligence of [the Division's] efforts on behalf of a parent is not measured by their
success," DMH, 161 N.J. at 393, particularly where the lack of success results
from a parent's "failure to cooperate or follow through." N.J. Div. of Youth &
Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div. 2004). The record
evidence demonstrates that the Division provided services in light of defendants'
individual and sometimes changing needs.
Also lacking merit is Ashley's contention that the Division violated her
rights under the Americans with Disabilities Act. The Division provided
services to Ashley to assist her in overcoming her disabilities, or to enable her
to parent in spite of them. The ADA does not excuse Ashley's lack of success,
as that "would improperly elevate the rights of the parent above those of the
child." A.G., 344 N.J. Super. at 442 (citations omitted). In addition, we discern
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no error in the court's determination that the Division considered alternatives to
termination. Craig's foster parents expressed their unequivocal commitment to
adopt Craig as early as November 2016. The Division was not required to
explore kinship legal guardianship (KLG) with them. See N.J. Div. of Youth &
Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004) (stating "when the
permanency provided by adoption is available, kinship legal guardianship
cannot be used as a defense to termination of parental rights").
We also discern no error in Judge Gaus's finding that the Division met
prong four. The court recognized that Craig remained attached to his parents.
Yet, the fourth prong does not require a "showing that no harm will befall the
child as a result of the severing of biological ties." K.H.O., 161 N.J. at 355.
Substantial evidence in the record, including Dr. Singer's opinion, supported the
court's conclusion that termination of parental rights would not do more harm
than good.
Finally, we reject Ashley's assertion of evidentiary error and ineffective
assistance of counsel. She concedes that her records from Morristown Medical
Center, and from two physicians, were admitted without objection. Even
assuming for argument's sake a well-founded objection was available, in the
absence of one, the court as fact-finder was entitled to give the evidence
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appropriate evidential weight, recognizing whatever inherent weaknesses the
hearsay may have. N.J. Div. of Child Protection and Permanency v. J.D., 447
N.J. Super. 337, 349 (App. Div. 2016). Under those circumstances, Ashley
"faces an especially high hurdle . . . to establish that the admission of such
evidence constitutes 'plain error.'" Ibid.We are not convinced plain error is present here. Ashley has not
demonstrated that admission of the hospital and physicians' records was "clearly
capable of producing an unjust result." R. 2:10-2. There was ample evidence,
outside of the hospital records, of Ashley's mental illness and pain medicine use,
their negative impact on her parenting, and her failure to treat consistently.
Without addressing Ashley's claim of deficient performance, her claim of
ineffective assistance of counsel must also fail, as there was no reasonable
probability that the result of the proceeding would have been different had
Ashley's counsel interposed an objection. See N.J. Div. of Youth & Family
Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting standard under Strickland
v. Washington, 466 U.S. 668, 694 (1984), which requires a defendant to show
deficient performance and "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different") .
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To the extent not addressed, defendants' remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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