DCPP VS. L.C. AND J.T.IN THE MATTER OF THE GUARDIANSHIP OF H.E.T.(FG-16-0086-15, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1653-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.C.,
Defendant-Appellant,
and
J.T.,
Defendant.
————————————————————————————————
IN THE MATTER OF THE GUARDIANSHIP
OF H.E.T.,
Minor.
————————————————————————————————
Submitted October 11, 2017 – Decided October 30, 2017
Before Judges Hoffman, Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-0086-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anna Patras, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Jason W. Rockwell,
Assistant Attorney General, of counsel; Jesse
J. Sierant, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Joseph Hector
Ruiz, Designated Counsel, on the brief).
PER CURIAM
Defendant L.C. appeals from a December 8, 2016 judgment
terminating her parental rights to her son H.E.T. (Harry), born
in 2010.1 Defendant raises the following points of argument for
our consideration:
THE DECISION TO TERMINATE L.C.'S PARENTAL
RIGHTS WAS NOT SUPPORTED BY SUFFICIENT
CREDIBLE EVIDENCE.
[A.] PRONGS ONE & TWO: DCPP FAILED TO DEMONSTRATE
BY CLEAR AND CONVINCING EVIDENCE A CAUSAL
CONNECTION BETWEEN THE MOTHER'S ACTIONS AND
HARM OR IMMINENT RISK OF HARM TO H.E.T. AND
THAT THE MOTHER WAS UNWILLING OR UNABLE TO
ELIMINATE THAT HARM.
[B.] PRONG THREE: DCPP DID NOT PROVIDE
"REASONABLE EFFORTS" []INCLUDING AN INQUIRY
INTO ALTERNATIVES TO TERMINATION.
[C.] PRONG FOUR: THE TRIAL COURT ERRED IN FINDING
THAT THE TERMINATION OF THE MOTHER'S
1
We use initials and pseudonyms to protect the family's privacy.
Harry's biological father, J.T., voluntarily surrendered his
parental rights before the proceedings under review.
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PARENTAL RIGHTS WILL NOT DO MORE HARM THAN
GOOD.
We find no merit in any of those arguments and, except as addressed
herein, they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
After a four-day trial, Judge Daniel J. Yablonsky found that
the Division of Child Protection and Permanency (Division)
satisfied the four prongs of the best interests test, N.J.S.A.
30:4C-15.1(a). We owe deference to Judge Yablonsky's decision,
unless it was not supported by sufficient credible evidence or was
otherwise "so wide of the mark that a mistake must have been made."
N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279
(2007) (citation omitted). Having reviewed the record in light
of that standard, we find no basis to disturb the order on appeal.
We affirm for the reasons stated by Judge Yablonsky in his
comprehensive thirty-three-page written opinion issued on December
7, 2016, and for the reasons stated in this opinion.
Since Judge Yablonsky's opinion sets forth the essential
facts, we need not repeat them here. To summarize, defendant's
involvement with the Division began in July 2010, when the Division
received a report, stating defendant lacked parenting skills to
care for her infant son, Harry. In February 2011, defendant's
mother contacted the Division and reported defendant smokes
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marijuana daily, "drops [Harry] off at different people's houses
to babysit," and leaves dog feces on the floor. When a caseworker
visited defendant's home the following day, defendant stated her
mother made the report because they had a physical altercation.
Defendant denied smoking marijuana, but she submitted to a urine
screen, which tested positive for marijuana.
Eventually, the Division removed Harry from defendant's care
twice due to her alcohol and marijuana abuse, with the first
removal occurring in February 2012. On April 30, 2012, defendant
stipulated to child abuse or neglect due to her positive urine
screens for marijuana and alcohol use while she was the sole
caregiver of Harry. After the Division provided defendant with
extensive services, and she completed a treatment program, the
court ordered Harry returned to defendant's care in September
2013.
The second removal occurred in July 2014, after a Division
caseworker conducted an unannounced visit at defendant's home and
found defendant visibly intoxicated and incoherent while caring
for Harry. Thereafter, the Division again provided defendant with
substance abuse evaluations and treatment; however, she continued
to relapse and test positive for both alcohol and marijuana.
Since December 2015, Harry has been with M.C., who wants to
adopt him. Before that, Harry had been in and out of six other
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foster homes. The Division investigated various potential
relative caregivers, but ruled them out.
At trial, which began in June 2016, the Division presented
testimony from two caseworkers, the foster mother, and Dr. Robert
Kanen, a psychologist. Defendant testified on her own behalf and
presented testimony from her expert, Dr. James Reynolds, also a
psychologist. The court also considered numerous documents
received in evidence.
Addressing prong one, the court found the Division provided
defendant with appropriate services and extensive treatment for
over five years, but defendant continued to relapse and could not
sustain sobriety. The court also found that defendant's relapses
and inability to maintain sobriety had caused harm to Harry by
delaying their reunification process. In making that
determination, the court relied on the testimony of both Dr. Kanen
and Dr. Reynolds. The court also found that defendant's "sporadic
visitations" with Harry had caused harm to the child.
Turning to prong two, the court found that defendant's history
of substance abuse demonstrated she had little likelihood of
successfully maintaining sobriety. The judge again relied on the
testimony of both Dr. Kanen and Dr. Reynolds. The court also
found defendant unable or unwilling to provide a safe and stable
home for Harry.
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Addressing prong three, the court found the Division had
provided defendant with reasonable services over the previous five
years, including substance abuse treatment, parenting skills
training, psychiatric evaluations, and visitation. The court also
found the Division had investigated all potential relative
caregivers, and all were "appropriately ruled out."
Finally, with regard to the fourth prong, again relying on
expert testimony, the court found the record contained clear and
convincing evidence that terminating defendant's parental rights
would not do more harm than good. In particular, the court focused
on Harry's need for permanency and found that adoption by the
foster mother provided Harry the best prospect for achieving such
permanency.
Defendant's arguments asserting the Division failed to
satisfy prongs one and two of the best interests test clearly lack
merit. See N.J.S.A. 30:4C-15.1(a)(1), -15.1(a)(2). A parent's
"inability to provide a stable and protective home" for his or her
child is highly relevant to whether he or she "can cease to inflict
harm" on them. N.J. Div. of Youth and Family Servs. v C.S., 367
N.J. Super. 76, 118 (App. Div.), certif. denied, 180 N.J. 456
(2004). Further, a key issue is whether the parent "can become
fit to assume the parental role within time to meet the child's
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needs." N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J.
Super. 235, 258 (App. Div. 2005).
Defendant's continuing failure to provide Harry with a safe
and stable home, and her inability to address her substance abuse
issues, harmed Harry by causing him to remain in foster care since
July 2014, moving among six different foster homes until his
current placement with M.C. See N.J. Div. of Youth and Family
Servs. v. R.G., 217 N.J. 527, 557 (2014) (citing In re Guardianship
of K.H.O., 161 N.J. 337, 348-49 (1999)). Moreover, defendant's
own expert opined that she was still not capable of acting as a
parent by the time of the trial. See F.M., supra, 375 N.J. Super.
at 258.
Defendant's arguments asserting the Division failed to
satisfy prong three of the best interests test similarly lack
merit. See N.J.S.A. 30:4C-15.1(a)(3). The third prong
"contemplates efforts that focus on reunification of the parent
with the child and assistance to the parent to correct and overcome
those circumstances that necessitated the placement of the child
into foster care." In re Guardianship of K.H.O., supra, 161 N.J.
at 354. "Although the Division has a statutory duty to evaluate
relatives as potential caretakers, there is no presumption
favoring the placement of a child with such relatives." N.J. Div.
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of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App.
Div. 2013), certif. denied, 217 N.J. 587 (2014).
The record reflects the Division made numerous referrals (and
sometimes re-referrals) for both substance abuse and psychological
counseling. Although defendant did not receive all of the
treatment recommended for her, this often occurred due to
defendant's noncompliance or nonattendance, rather than the
Division's failure to provide reasonable services. Additionally,
we reject defendant's contention that the Division arbitrarily
ruled out Harry's relatives as placements in order to terminate
her parental rights. The record provides no support for this
claim.
Defendant's arguments asserting the Division failed to
satisfy prong four of the best interests test also lacks merit.
See N.J.S.A. 30:4C-15.1(a)(4). As explained by our Supreme Court:
When a parent has exposed a child to
continuing harm . . . and has been unable to
remediate the danger to the child, and when
the child has bonded with foster parents who
have provided a nurturing and safe home, in
those circumstances termination of parental
rights likely will not do more harm than good.
[N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 108 (2008).]
Defendant argues the Division impermissibly limited
visitation between her and Harry in order to "strengthen its case
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and limit [her] defenses going forward." Furthermore, by providing
inadequate visitation, defendant argues that the Division
"manipulated the situation to deprive [her] of a meaningful
opportunity to maintain and strengthen her bond with Harry. . . ."
Defendant's argument, however, ignores the fact that she often
missed her scheduled visits with Harry and failed to maintain the
schedule the Division provided. According to a Division
caseworker, defendant often would arrive thirty to forty minutes
late to her visits, cancel her visits, or confirm her visits but
not show up.
Defendant's reliance on her visitation schedule is misplaced;
it fails to address the crux of the fourth prong's inquiry —
whether terminating defendant's parental rights would cause Harry
more harm than good. The Division placed Harry with M.C., who
wants to adopt Harry in order to provide him with a stable home.
Both parties' expert witnesses testified that M.C. is a stable
caretaker, and Dr. Kanen asserted Harry would "experience severe
distress" if removed from her care. The record does not support
defendant's argument that termination of her parental rights will
do more harm than good.
Defendant's arguments do not warrant further discussion. R.
2:11-3(e)(1)(E).
Affirmed.
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