DCPP VS. J.D. AND A.P., IN THE MATTER OF THE GUARDIANSHIP OF N.P. (FG-02-0029-19, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-3119-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.D.,
Defendant,
and
A.P.,
Defendant-Appellant.
_______________________
IN THE MATTER OF THE
GUARDIANSHIP OF N.P.,
a minor.
_______________________
Submitted February 8, 2021 – Decided March 26, 2021
Before Judges Suter and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0029-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth Harrigan, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Rachel B. Kristol, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Margo Hirsch,
Designated Counsel, on the brief).
PER CURIAM
Defendant, A.P. (Adam or defendant) 1 appeals the judgment terminating
his parental rights to N.P. (Nick). He contends the trial court lacked
substantial, credible evidence to terminate his parental rights. 2 We affirm
largely for reasons expressed in Judge Michael Antoniewicz's comprehensive,
written opinion.
1
Fictitious names have been used throughout the opinion to maintain the
confidentiality of the parties.
2
J.D. (Jane) voluntarily surrendered her parental rights to Nick in December
2019. She is not involved in this appeal. Jane has an adult daughter, who also
is not part of this appeal, although she is referenced in the opinion.
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I.
Defendant is the biological parent of Nick, who was born in May 2014.
In 2016, a referral was made to the Division of Child Protection and
Permanency (DCPP) because Jane's fifteen-year-old daughter, Audrey, was not
attending school. Adam acknowledged smoking marijuana with Audrey and
that his substance and alcohol abuse were not treated. DCPP also received a
second referral about the family. It claimed that after Adam was released from
jail for domestic violence against Jane, he followed the family to the shelter
where they were living, and that he was homeless.
The DCPP implemented a safety protection plan, but Adam violated it
by having unsupervised contact with Nick. The court then placed the children
under DCPP's care and supervision, and required services that included
substance abuse treatment, a psychological evaluation, and supervised visits
with Nick.
In March 2016, Dr. Jemour Maddux conducted a psychological
evaluation of Adam, recommending a psychiatric evaluation, therapy and
domestic violence counseling. Defendant's substance abuse evaluation
recommended he participate in intensive outpatient treatment. He was referred
to domestic violence counselling because of a history of domestic violence in
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his relationship with Jane. Defendant did not comply with his drug treatment
program through lack of attendance and was discharged. Defendant
maintained supervised visitation with Nick. In December 2016, the DCPP
learned Adam was not compliant with the domestic violence program's
payment policy, and that he was discharged. Adam explained he used his
money to pay for Jane and the children.
In December 2016, the caseworker took Adam to social services to apply
for assistance. He remained homeless. He attended monthly psychiatric care
for a bipolar disorder, alcohol and cannabis use. The litigation was terminated
in May 2017, when the family lost contact with DCPP.
In June 2017, Adam was arrested for burglary. Audrey, who by then
was seventeen, was with Adam when he was arrested. DCPP executed an
emergency removal of the children, and obtained an order placing Nick and
Audrey under its care, custody and supervision. Nick was placed with the
resource family where he currently lives. Defendant explained to DCPP that
he was stealing pipes from buildings to support his family. He was not
attending a substance abuse program or a program for his mental health issues.
DCPP learned that defendant had a sister and brother-in-law, S.H. and
P.H., in Ohio who could be evaluated for possible placement of the children.
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By this time, defendant had attended an inpatient drug treatment program, was
residing in a shelter and participating in Drug Court. He was to attend
intensive outpatient treatment.
Dr. Maddux conducted another evaluation of Adam in November 2017.
He recommended individual psychotherapy for a bipolar disorder, medication
monitoring, compliance with substance abuse recommendations, domestic
violence counselling, supervised visitation, and a continuation of restraints
until Adam could meet certain benchmarks.
Jane and Adam were living in a shelter at that time, but they were
discharged when it was alleged Adam assaulted Jane. Because Adam
remained homeless, DCPP referred him to a program that included therapy but
had a housing component.
In January 2018, Adam was arrested for violating his probation by not
attending substance abuse treatment. DCPP advised defendant to apply for
temporary rental assistance from the county because he already was receiving
other welfare assistance. When he was released, he stayed at a shelter. DCPP
restarted his supervised visitation with Nick. DCPP provided defendant with a
list of housing resources. By September 2018, Adam completed outpatient
services, was employed, taking medication and compliant with Drug Court.
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Two months earlier, the trial court approved DCPP's plan to terminate
Jane and Adam's parental rights to Nick. The guardianship complaint was
filed in July 2018.
Between October and November of 2018, Adam, Jane, Nick, and S.H.
and P.H. submitted to psychological evaluations with Dr. Elizabeth Smith.
Her report stated, "it is my opinion, to a reasonable degree of psychological
certainty, that neither [Adam nor Jane] would be able to safely parent [Nick] in
the foreseeable future." "This is due to chronic and severe mental illness,
substance abuse and personality disorders." She opined that placing Nick with
his aunt and uncle in Ohio would not "cause severe and enduring harm."
Dr. Mark Singer conducted a combined psychological and bonding
evaluation for the Law Guardian. He concluded that neither parent was "likely
to become a viable parenting option for their child in the foreseeable future."
He continued that they would continue to "struggle" with substance abuse an d
that they "will continue to have significant difficulty" attaining or maintaining
stability for Nick. These patterns were likely to persist. He also concluded
that termination of parental rights was in Nick's best interest.
In April 2019, Adam and Jane agreed to identified surrenders of their
parental rights to Nick in favor of S.H. and P.H., who lived in Ohio. Nick was
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placed in their custody. By August 2019, however, these paternal relatives
advised they did not want to adopt Nick. The identified surrenders were
vacated, and the termination of parental rights litigation was reinstated. Nick
was returned to New Jersey to the resource family where he resided since his
removal in June 2017. The DCPP reinstituted services for Adam.
By this time, Adam advised DPCC that he had housing and was
employed. He resumed visitation with Nick. However, in the fall of 2019, he
was fired from his job which also meant that he lost his housing. He then did
not maintain his visits with Nick, and by October 2019, a warrant was issued
for his arrest because he did not appear in Drug Court. Adam was arrested and
incarcerated during the trial. Adam's substance abuse treatment provider
advised DCPP about Adam's poor compliance with the program.
In the termination of parental rights trial, the DCPP case worker testified
about the DCPP's involvement with the family beginning in 2016 when Nick
was two years old. The case worker testified it was DCPP's plan for Nick to
be adopted by his current resource family.
Dr. Smith testified for the DCPP about the psychological and bonding
reports she prepared following her evaluations of Adam in 2018 and 2019. Dr.
Smith testified that Adam exhibited a personality disorder and suffered from
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bipolar and substance abuse disorders. His mental health seemed to have
deteriorated. He had an abusive relationship with Jane. Dr. Smith testified
Adam could not safely parent Nick and could not do so into the foreseeable
future. He minimized his behavior and remained unstable. He exhibited a
demeanor that was grandiose with poor judgment. He minimized his substance
abuse history. She had "no confidence" that he could remain sober. Even
though he had three years of services, Dr. Smith did not think Adam had
eliminated the harms that resulted in Nick's removal. He could not safely
parent Nick or provide a safe home for him. There were no additional services
she could recommend.
Dr. Smith testified that Nick had "multiple attachments." Nick's primary
attachment was to his resource parents, not to Adam. They were "very happy
and comfortable together." His bond with the resource parents was "very
strong and secure." She opined it was in Nick's best interest to terminate
Adam's parental rights in order that Nick could be adopted by his resource
parents.
Dr. Mark Singer testified for the Law Guardian that Adam did not take
responsibility for his behavior. He was homeless and without employment.
He exercised poor judgment by smoking marijuana with Jane's daughter, who
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was a minor at the time. He suffered from a bipolar disorder. Dr. Singer
described Adam's "overall behavioral pattern" as showing "times of
compliance . . . and then there are behaviors involving poor judgment where he
sabotages himself." Dr. Singer opined that Adam could not adequately parent
Nick because of these "patterns of instability" and would not be able to do so
in the future. Adam still had no plan for Nick's future.
Dr. Singer's bonding evaluation showed it was in Nick's best interest to
"achieve consistency and permanency." Adam could not provide this. He
testified it was in Nick's best interest to terminate Adam's parental rights
followed by Nick's adoption by the resource parents. Although Nick would
have a negative reaction from termination of Adams' rights, that relationship
already was disrupted by incarceration, and the resource parents could mitigate
that harm.
Defendant did not attend his bonding re-evaluation in the fall of 2019
with Dr. Singer. After that, Adam became incarcerated. The jail did not
permit personal contact between Adam or Nick. Dr. Singer testified it would
not be fair to Nick or Adam to conduct a reevaluation under these
circumstances.
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Adam's testimony revealed he did not take responsibility for what had
occurred. He explained that he could not start drug treatment in 2016 because
he was working. He could not finish the domestic violence counselling
because he gave his money to Jane and could not afford the five-dollar fee. He
did not have housing because he was scammed. He was arrested in June 2017,
but there was no evidence against him. He pleaded guilty to burglary so
Audrey would not be charged. He was falsely accused of assaulting Jane and
discharged from the shelter. He could not get drug treatment because he was
homeless, and that was a violation of probation and then he was arrested. At
some point, he tested positive for marijuana because smoke had been blown in
his face. His employer fired him. He then lost his housing when the employer
backed out of a business arrangement with him. When he lost his job, Adam
explained he was stealing pipes from buildings for money. He did not have a
plan to take care of Nick if he were released, which would require Nick to
remain in foster care for a time.
On March 20, 2020, the trial court ordered termination of Adam's
parental rights to Nick. In its comprehensive, written decision, the trial court
found there was clear and convincing evidence to support each of the four
prongs of the best interests test under N.J.S.A. 30:4C-15.1. The trial court
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credited the testimony of witnesses for DCPP and the Law Guardian. It did
not find Adam to be a credible witness.
The court found Adam "would endanger the safety, health and
development " of Nick. Adam had not addressed the issues which had led to
Nick's removal: substance abuse, lack of housing, lack of stability, and mental
health issues. Nick was exposed to domestic violence. The trial court found
prong two was satisfied because Adam did not address the underlying
problems or take responsibility for them. The experts testified Adam would
not be capable of parenting Nick in the foreseeable future. The court found the
DCPP provided reasonable services in satisfaction of prong three. The fourth
prong was satisfied based on the expert testimony that termination would not
do more harm than good. The court found Nick was securely bonded with his
resource parents; they are Nick's psychological parents. The child would
suffer "a traumatic loss and extreme distress if removed from his [r]esource
[p]arents."
On appeal, defendant raises these issues for our consideration:
POINT I
THE TRIAL JUDGE ERRED IN HIS
DETERMINATION THAT DCPP SATISFIED THE
REASONABLE EFFORTS STANDARD WHERE
DCPP FAILED TO PROVIDE SERVICES THAT
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WERE REASONABLE UNDER ALL THE
CIRCUMSTANCES.
POINT II
REVERSAL IS WARRANTED BECAUSE THE
EVIDENCE PRESENTED DID NOT SUPPORT THE
LOWER COURT'S CONCLUSION THAT NICK'S
SAFETY, HEALTH, OR DEVELOPMENT WAS OR
WILL CONTINUE TO BE ENDANGERED BY THE
PARENTAL RELATIONSHIP.
POINT III
THE COURT'S CONCLUSIONS THAT ADAM WAS
UNABLE OR UNWILLING TO ELIMINATE THE
HARM FACING HIS CHILD AND UNWILLING OR
UNABLE TO PROVIDE A SAFE AND STABLE
HOME ENVIRONMENT WERE ERRONEOUS.
POINT IV
REVERSAL IS WARRANTED BECAUSE THE
EVIDENCE PRESENTED DID NOT SUPPORT THE
LOWER COURT'S CONCLUSION THAT
TERMINATION OF PARENTAL RIGHTS WOULD
NOT DO MORE HARM THAN GOOD.
II.
To terminate parental rights, N.J.S.A. 30:4C-15.1(a) requires that the
Division prove by clear and convincing evidence the following four prongs:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
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(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 . . . ;
(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
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.
[N.J.S.A. 30:4C-15.1(a).]
A trial court's decision to terminate parental rights is subject to limited
appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596,
605 (2007); see Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the
family courts' special . . . expertise in family matters, appellate courts should
accord deference to family court factfinding."). The family court's decision to
terminate parental rights will not be disturbed "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).
We have carefully examined the record in light of the arguments posed,
concluding that Judge Antoniewicz's findings were supported by substantial,
credible evidence on the record as a whole. We defer to those findings. See
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N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012);
Cesare, 154 N.J. at 413. We affirm substantially for the reasons set forth by
the trial court in its written decision, adding these comments.
A.
Defendant contends the DCPP did not make reasonable efforts to
provide appropriate services to meet his needs. He argues he was not given
visitation with Nick during his incarceration and Dr. Singer did not update his
bonding evaluation. Adam claims DCPP did not help him find housing. He
argues he was not referred to programs that would have helped him with
employment and a better education.
The third prong 3 of N.J.S.A. 30:4C-15.1(a) requires the State to make
reasonable efforts to help a parent correct the circumstances that led to the
child's outside placement by providing services. N.J.S.A. 30:4C-15.1(a)(3).
Reasonable efforts must consider "the abilities and mental conditions of the
parents." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418,
442 (App. Div. 2001).
3
We address the statutory factors in the same order they were addressed by
defendant.
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There was substantial credible evidence to support the trial court's
finding that the third prong was proven by clear and convincing evidence. The
DCPP provided a host of services to Adam consisting of substance abuse
evaluations and treatment, domestic violence counselling, medication
monitoring and counseling, the referral to programs that included a housing
component, referral to public assistance, supervised visitation with Nick,
psychological evaluations, and counselling. All these services were
implemented based on the psychological evaluations and testing conducted by
DCPP's experts. The DCPP also identified relatives who might be able to
adopt Nick, but the placement in Ohio with Adam's sister did not work out and
the child was returned to New Jersey. There were no other options.
Adam did not attend the updated bonding evaluation in November 2019.
After that, he was incarcerated but the jail did not permit in-person contacts.
Dr. Singer testified that visitation under these circumstances would not be fair
to Adam or his son. Dr. Smith was able to update her evaluations, however,
this was before Adam was incarcerated. She testified to the updated
evaluations. There was no expert testimony offered by the defense to rebut the
opinions by Drs. Smith and Singer. The fact that Adam may not have been
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successful in overcoming the problems that resulted in Nick's removal does not
mean the DCPP's efforts were unreasonable or lacking.
B.
Defendant contends the State did not prove he caused harm to Nick
because there was no finding of abuse or neglect. He argues there is no causal
link between the alleged harms referenced by the trial court — an unstable
environment, substance abuse, lack of housing and mental health issues, and
exposure to domestic violence — and harm to Nick. Adam claims Nick would
not have been removed in June 2017, if DCPP provided him with housing
assistance and referrals to other programs. He argues that by considering his
lack of housing, the court improperly focused on his poverty. Then, when he
lost housing, DCPP did not help him.
The harm necessary to prove prong one is not limited to physical harm;
it includes a parent's inability to provide a safe, stable and permanent home for
the child. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). This
prong focuses "on the effect of harms arising from the parent-child relationship
over time on the child's health and development." In re Guardianship of
K.H.O., 161 N.J. 337, 348 (1999). The harm "must be one that threatens the
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child's health and will likely have continuing deleterious effects on the child."
Id. at 352.
In this case, there was substantial, credible evidence to support the trial
court's finding that prong one was satisfied. Defendant never fully addressed
his substance abuse issues; some of his tests were positive or he missed them.
He did not successfully complete Drug Court. He did not effectively address
his mental health issues. Adam's testimony and the evaluations conducted by
Dr. Smith and Singer showed he did not take responsibility for his conduct.
Dr. Singer testified that taking responsibility would have been the first step
toward making changes. Defendant blamed poverty for his situation but the
combination of drug use, mental health issues, and criminal activity showed it
was these poor choices, in addition to poverty, that contributed to his unstable
lifestyle. It was not necessary for the DCPP to show abuse and neglect in this
case because it was brought under Title Thirty, not Title Nine. See N.J. Div.
of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009)
(Title Thirty provides five statutory grounds for termination of parental rights,
not just abuse and neglect).
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C.
Defendant argues there was no evidence he was unwilling or unable to
correct the conditions that lead to Nick's removal. He contends DCPP did not
refer him to services that would have helped such as housing assistance or
employment where he could improve his education. He claims he addressed
his substance abuse issues.
Under prong two of the best interests test, the DCPP must show a parent
is unable or unwilling to correct the circumstances that led to its involvement.
K.H.O., 161 N.J. at 348. "The question is whether the parent can become fit in
time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v.
T.S., 417 N.J. Super. 228, 244 (App. Div. 2010).
There was substantial, credible evidence to support the trial court's
finding under prong two. The services provided by DCPP were those that
were recommended by the psychologists. DCPP did refer Adam to a program
that had a housing component and directed him to apply for rental assistance
through welfare. Defendant did not rebut the experts for DCPP and the Law
Guardian that defendant was not able to parent Nick at this time and would not
be able to do so within a reasonable time.
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D.
Adam argues the trial court erred in finding that termination of parental
rights would not do more harm than good. He argues he is "committed to his
son" and complied with services. The experts noted there was a bond between
Nick and Adam. Dr. Singer never provided an updated bonding evaluation.
Dr. Smith indicated Nick had attachments to both parents and foster parents.
Defendant notes the resource parents did not testify at trial; only the DCPP
caseworker testified that the resource parents were willing to adopt Nick.
In evaluating prong four, the trial court must balance the child's
relationships with his birth and resource parents and determine whether he will
suffer greater harm from the termination of ties with the former than with the
latter. In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Prong four
does not require that "no harm will befall the child as a result of the severing
of biological ties." K.H.O., 161 N.J. at 355. A court must consider "the
child's age, her overall health and development, and the realistic likelihood
that the [natural] parent will be capable of caring for the child in the near
future." Id. at 357.
Here, the fourth prong of the best interests test was satisfied. Dr.
Smith's opinion was that Nick's primary attachment was with his resource
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parents and that termination of parental rights would not do more harm than
good. Dr. Singer shared this opinion. The opinions by the experts were
unrebutted, as were their views that defendant was unfit to parent and would
not be capable to do so within the foreseeable future. There was testimony
that the resource parents were willing to adopt and certainly took Nick back
into their home when his placement in Ohio did not work out.
Adam is critical of the DCPP's proof because there was no first-hand
testimony from the resource family about adoption. However, we are satisfied
the record supported the availability of an adoption opportunity for Nick. Nick
remained with the resource family for almost all the time he has been i n
placement. Adam never presented any evidence to the contrary about the
supportive environment offered by the resource family.
After carefully reviewing the record and the applicable legal principles,
we conclude that any further arguments by defendant are without sufficient
merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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