DCPP VS. L.M. AND F v. IN THE MATTER OF THE GUARDIANSHIP OF J v. (FG-09-0235-18, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1736-18T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
L.M. (Deceased),
Defendant,
and
F.V.,
Defendant-Appellant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.V.,
a minor.
______________________________
Submitted January 6, 2020 – Decided February 26, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0235-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Beryl Vurnen Foster-Andres, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Ellen L. Buckwalter, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Linda Vele Alexander,
Designated Counsel, on the brief).
PER CURIAM
Defendant, F.V. (Fred), 1 appeals from the Family Part's November 30,
2018 order terminating parental rights to his only child, J.V. (John), then six
years old.2 In addition to having a history of criminal activity and violence, Fred
suffers from unresolved mental health and substance abuse issues. He has be en
incarcerated for all but two months of his son's life.
1
For the reader's convenience, we use pseudonyms for defendant, his son, his
son's deceased mother, and his son's aunt.
2
The trial court issued a supplemental written opinion on February 25, 2019.
A-1736-18T3
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Judge Radames Velazquez convened a two-day evidentiary hearing after
which he ruled that the Division of Child Protection and Permanency (Division)
proved the four prongs of the best-interests-of-the-child test, N.J.S.A. 30:4C-
15.1(a), by clear and convincing evidence. On appeal, defendant challenges the
trial court's conclusions with respect to all four prongs. He contends, for
example, that he never harmed his son, was not given sufficient parenting time,
and will be released from prison soon. The Division and John's Law Guardian
contend that the evidence at trial was sufficient and urge us to affirm the
judgment.
After carefully reviewing the record in view of the parties' arguments,
applicable legal principles, and standard of review, we affirm the termination of
Fred's parental rights substantially for the reasons set forth in Judge Velazquez's
initial and supplemental written opinions. Tragically, John's mother, L.M.
(Lynne), is deceased. The trial court's order freed John for adoption by his
maternal aunt, S.M. (Susan). She was a frequent presence in John's life prior to
Lynne's untimely death and has since stepped in to serve as her nephew's
caregiver. The trial court's decision to terminate Fred's parental rights, allowing
for John's adoption by his aunt, is decidedly in the child's best interest.
I.
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Fred raises the following contentions for our consideration:
POINT I
DCPP FAILED TO PROVE THAT TERMINATION
OF PARENTAL RIGHTS WOULD BE IN [JOHN'S]
BEST INTEREST BECAUSE [FRED] NEVER
HARMED HIS SON OR PLACED HIM AT RISK OF
HARM, [JOHN] WAS NOT PRESENT FOR ANY
SUBSTANCE USE OR DOMESTIC VIOLENCE, IT
HAS NOT BEEN SHOWN THAT [FRED] HAS ANY
MENTAL HEALTH ISSUES THAT WOULD RISK
HARM TO HIS SON, [FRED] IS ENROLLED IN
SEVERAL SERVICES, AND THE FATHER AND
SON HAVE THE ABILITY TO BOND UPON
[FRED'S] RELEASE.
A. DCPP HAS FAILED TO PROVE THE
FIRST PRONG OF THE BEST
INTERESTS TEST BECAUSE [FRED]
HAS NEVER HARMED HIS SON OR
PLACED HIM AT A RISK OF HARM.
B. DCPP HAS FAILED TO SATISFY
THE SECOND PRONG OF THE BEST
INTERESTS TEST BECAUSE [FRED]
WILL BE QUALIFIED FOR PAROLE
WITHIN A YEAR, HE IS
PARTICIPATING IN A NUMBER OF
SERVICES, AND IT HAS NOT BEEN
PROVEN THAT HE REQUIRES
PARENTING CLASSES.
C. DCPP HAS FAILED TO MEET THE
THRESHOLD FOR THE THIRD PRONG
STANDARD BECAUSE [FRED] WAS
NOT OFFERED SUFFICIENT
PARENTING TIME WITH HIS SON.
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D. DCPP FAILED TO PROVE THE
FOURTH PRONG OF THE BEST
INTERESTS TEST BECAUSE THE
LACK OF APPROPRIATE PARENTING
TIME HINDERED [FRED'S] ABILITY
TO BOND WITH HIS SON.
II.
The pertinent facts leading to the parental termination complaint are set
forth comprehensively in Judge Velazquez's written opinion. We presume the
parties are familiar with that opinion, so we summarize the facts in this opinion,
highlighting those we deem to be particularly relevant to the issues raised in this
appeal.
The Division first became involved with the family in December 2011,
when it received a referral from Jersey City Medical Center. Lynne, who was
pregnant with John, sought medical treatment for stab wounds to her back, neck,
and arm. She reported that Fred had attacked her with a knife in the presence of
one of her three daughters. The Division investigated and substantiated a
finding of neglect against Fred. Shortly thereafter, Fred was arrested and
charged with aggravated assault.
Fred was incarcerated when John was born in August 2012. In December
2012, he was convicted of receiving stolen property, possession of a weapon for
an unlawful purpose, terroristic threats, resisting arrest, and distribution of a
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controlled dangerous substance. He was sentenced to five years in prison and
was released around February 2017.
Not long after his release, Lynne obtained a temporary restraining order
against Fred after he tried to strangle her. During the Division's investigation
into the incident, one of Lynne's other three children reported that Fred had
threatened to kill Lynne. John confirmed that he saw Fred hitting Lynne. The
Division did not seek a finding of abuse and neglect against Fred in relation to
John but did substantiate abuse and neglect between Fred and one of Lynne's
daughters.
Regrettably, in early April 2017, Lynne died from complications related
to a heart condition. The following day, Fred was incarcerated for threatening
to kill Lynne's sister, Susan. The Division executed a Dodd 3 removal of John
and placed him with Susan. John has remained in Susan's care since then.
In March 2018, Fred pled guilty to various crimes including terroristic
threats, resisting arrest, and eluding. He was sentenced to five years in prison.
The following month he also pled guilty to simple assault. He is currently
incarcerated and will not be eligible for parole until April 2020.
3
A Dodd removal is an emergent removal of a child without a court order
pursuant to N.J.S.A. 9:6-8.21 to -8.82 (the Dodd Act). N.J. Div. of Youth &
Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
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At the guardianship trial, Nitzana Silverman, a Division adoption
caseworker, testified that John has a loving relationship with Susan. Prior to the
Dodd removal, John spent weekends with her. He is comfortable in Susan's
home, and she has been attentive to his needs. The Division has no concerns
regarding Susan's ability to care for John, and she has indicated that she wants
to adopt him.
Joel S. Federbush, M.D., a psychiatrist, testified that Fred had an impulse
control disorder. At the time of the evaluation, Fred was taking numerous
psychiatric medications. During his incarceration, Fred received diagnoses
related to his abuse of PCP, cocaine, alcohol, and hallucinogens. He also was
diagnosed with mental health disorders, including schizophrenia,
schizoaffective disorder, and impulsivity.
Federbush expressed concern about Fred's ability to remain substance free
given that he previously relapsed immediately upon release from prison.
Federbush also noted in his testimony that Fred did not set forth a spec ific
parenting plan. Instead, he told Federbush that he would figure things out as
they happen and do what was necessary.
Federbush opined that Fred's unresolved anger management and substance
abuse issues would expose John to a risk of harm. Federbush thus concluded
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that Fred could not be an effective or appropriate parent to John for the
foreseeable future.
Albert Griffith, Ed.D., a psychologist, evaluated Fred on two occasions.
He testified that Fred was unable to safely parent John due to his mental
limitations, emotional state, lack of interest in obtaining treatment for his
substance abuse, and lack of parenting skills. Griffith noted that Fred did not
have plans for childcare. He also testified that Fred's plans for post-
incarceration life included engaging in criminal activity to support himself.
Griffith concluded that Fred would be unable to safely parent John for th e
foreseeable future.
Furthermore, Griffith determined that John has no attachment to Fred and
that he did not consider Fred a source of support. Griffith testified that John
was noticeably uncomfortable during the bonding evaluation. In contrast , John
had a secure and healthy attachment to Susan. Griffith pointed out in his
testimony that John was a special needs child. Griffith opined that John would
likely remain a special needs child and that Susan would continue to meet those
needs.
Fred offered no testimony or documentary evidence at trial.
III.
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We begin our analysis by acknowledging the legal principles that govern
this appeal. Our Supreme Court has held that a parent has a constitutional right
to raise his or her biological child, which "is among the most fundamental of all
rights." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
However, the State as parens patriae may act to protect a child from physical or
emotional harm. Ibid. A parent's constitutional rights, in other words, are not
absolute and must yield to the State's interest in protecting a child from harm or
endangerment. Ibid. Accordingly, the State can seek to sever the parent-child
relationship when the interests of the parent and child are irreconcilable. N.J.
Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599, 602–03 (1986).
Importantly, a child has a right to a permanent, stable, and safe placement. N.J.
Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).
The termination of parental rights should only be pursued when "proof of
parental unfitness is clear." F.M., 211 N.J. at 448. In a termination proceeding,
the trial court determines whether the Division has successfully established that
the four elements of the best-interests-of-the-child statutory test have been
satisfied. N.J.S.A. 30:4C-15.1(a). That statute requires that the Division prove
by clear and convincing evidence that:
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(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 of 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.
[Ibid.]
When applying the best interests test, a trial court must pay specific
attention to a child's need for permanency and stability. In re Guardianship of
DMH, 161 N.J. 365, 385–86 (1999). As a result, the trial court must consider
"not only whether the parent is fit, but also whether he or she can become fit
within time to assume the parental role necessary to meet the child's needs."
N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div.
2006).
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The scope of an appellate court's review of the decision to terminate
parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.
596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact
if supported by adequate, substantial, and credible evidence in the record." Ibid.An appellate court should defer to the trial court's credibility determinations and
to its "special expertise in the field of domestic relations." N.J. Div. of Youth
& Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (quoting Cesare v. Cesare,
154 N.J. 394, 412 (1998)). An appellate court therefore should not alter the
findings below unless there was a manifest denial of justice. N.J. Div. of Youth
& Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989). However,
the trial court's interpretation of the law and legal findings are reviewed de novo.
R.G., 217 N.J. at 552.
IV.
A.
Under the first prong of the best-interests-of-the-child test, the trial court
examines the effect of the harm that stems from the parent-child relationship
over time. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).
It may consider both physical and psychological harm and, therefore, may base
its termination decision on emotional injury in the absence of physical harm.
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See In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977) ("The
absence of physical abuse or neglect is not conclusive on the issue of custody.").
Fred contends the trial court erred when it found the Division proved the
first prong because he did not harm his son or place him at risk of harm. He
argues, in this regard, that John was not exposed to his substance abuse issues,
domestic violence, or mental health problems. Further, Fred argues on appeal
that his lack of parenting experience and his present incarceration should not
have been used as support for the first prong.
We conclude to the contrary that there is adequate, substantial, credible
evidence to support Judge Velazquez's conclusion that Fred's relationship with
John has caused harm to the child and will continue to expose him to harm that
will negatively affect his health and development. The uncontradicted
testimony of two experts, both found to be well-qualified and credible by the
trial court, shows that Fred has unresolved substance abuse and mental health
issues that will continue to threaten John's health and development. If, as Fred
contends, he has not exposed John to his substance abuse, domestic violence,
and mental health problems, it is only because he has had very little exposure to
John of any kind.
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We also reject Fred's argument that the trial court improperly considered
the fact that he was incarcerated for most of John's life. There is ample support
in the record to support the conclusion that Fred's absence from his son's life has
contributed to John's instability. That absence is the direct result of Fred's
decision to engage in criminal activity leading to his periods of imprisonment.
Our Supreme Court has explained that "[a] parent's withdrawal of that
solicitude, nurture, and care for an extended period of time is in itself a harm
that endangers the health and development of the child." D.M.H., 161 N.J. at379 (citing In re Guardianship of K.H.O., 161 N.J. 337, 352–54); see also In re
Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (stating that first prong is
satisfied by showing that serious psychological damage could occur as result of
parent's actions or inaction). We have previously held, moreover, that a parent's
inability to remain out of prison could have negative effects on a child's stability.
N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534–36 (App.
Div. 2006) (discussing the impact of incarceration, including that it prevents
adequate parenting); see also In re Adoption by L.A.S., 134 N.J. 127, 137–39
(1993) (explaining that court is allowed to consider parent's incarceration when
determining whether or not to terminate parental rights).
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We add that the trial court did not use Fred's incarceration as a per se basis
for terminating his parental rights. Rather, the trial court prope rly considered
the effect of Fred's incarceration on the child as one factor among many relevant
circumstances pertaining to Fred's parental fitness. Relatedly, there was ample
evidence in the form of credible expert testimony that Fred would not become a
fit parent upon his impending release from prison.
B.
Under the second prong of the best interest analysis, which is closely
related to the first prong, parental unfitness can be demonstrated in two
alternative ways. K.H.O., 161 N.J. at 352. First, a party can show that
continuation of the parental relationship will likely cause future harm to the
child. A.W., 103 N.J. 607, 615–16. This can be established by proving parental
"dereliction and irresponsibility," which can be shown by proof of continued
substance abuse, the inability to provide a stable home, and the withholding of
nurturing and attention. D.M.H., 161 N.J. at 353.
The other way of establishing the second prong is by presenting evidence
that removing the child from his or her resource placement would cause serious
and enduring mental or emotional impairment. N.J.S.A. 30:4C-15.1(a)(2).
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Under this alternative approach, a trial court examines the bonds between a child
and his or her resource parent(s). D.M.H., 161 N.J. at 382.
In this instance, the Division presented proof under both ways of
establishing the second prong. Fred contends that the court erred when it
concluded that the Division satisfied the second prong because he will qualify
for parole next year and has participated in prison-based services. That
argument misses the point. Judge Velazquez relied on ample, credible, and
substantial evidence in the record when he concluded that Fred was unwilling
or unable to eliminate the harm facing John and was unwilling and unable to
provide a safe and stable home.
Federbush testified, for example, that while Fred complied with treatment
during his incarceration, his past conduct indicated that he would immediately
revert to a life of crime and resume abusing drugs upon release. We have
previously recognized that "parents dabbling with addictive substances must
accept the mandate to eliminate all substance abuse" and "[s]uch unabated
behavior . . . causes continuing harm by depriving their children of necessary
stability and permanency." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.
Super. 228, 245–46 (App. Div. 2010); see also K.H.O., 161 N.J. at 363 (finding
a parent's inability to overcome his or her own addiction in order to care for a
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child constitutes endangerment of that child). In New Jersey Division of Youth
& Family Services v. I.H.C., we explained that a parent's past conduct is relevant
in determining his or her future conduct. 415 N.J. Super. 551, 576 (App. Div.
2010).
Furthermore, applying the alternative method for establishing the second
prong of the statutory test, there was ample expert testimony that separating John
from Susan would cause serious and enduring harm. Delay in providing John
with a permanent home, moreover, would only add to the harm he has already
suffered as a consequence of Fred's actions and absence.
C.
Under the third prong of the best interest test, the trial court must decide
if the Division made reasonable efforts to reunify the family. N.J.S.A. 30:4C-
15.1(c). Fred contends that the court erred when it held that the Division
satisfied this prong because he was not offered sufficient parenting time with
John.
We disagree. The record shows the Division coordinated with the
Department of Corrections to provide services to Fred, facilitated visitation, and
provided bonding and psychological evaluations. Services provided at the
prison included: monthly meetings with the Division case manager; art therapy;
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group therapy; individual therapy; relapse prevention services; and medication
monitoring. We therefore conclude there was ample, credible, and substantial
evidence in the record to support the trial court's conclusion that the Division
made reasonable efforts aimed at reunification.
Furthermore, as explained in the supplemental written opinion, the trial
court considered alternatives to the termination of parental rights and found by
clear and convincing evidence that no alternatives existed. For example, the
court heard testimony that the Division assessed all five relatives that Fred
submitted as possible placements for John. The record reflects that all five
family members were assessed and ruled-out. As the trial court noted, none of
those family members appealed or requested a re-assessment. See N.J.S.A.
30:4C-12.1(b) ("If the department determines that the relative is unwilling or
unable to assume the care of the child, the department shall not be required to
re-evaluate the relative.").
Further, the record reflects that Susan was not interested in kinship legal
guardianship. As a result, that was not an option. Finally, reunification was not
a viable option because it would cause harm to John according to the testimony
of Federbush and Griffith. See A.W., 103 N.J. at 605 (explaining that
reunification is not option when it could cause harm to child).
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D.
The fourth prong of the best interests test requires that the Division show
that "[t]ermination of parental rights will not do more harm than good." N.J.S.A.
30:4C-15.1(a)(4). The trial court may rely on expert testimony when evaluating
the potential injury that a child may experience through the termination of
parental rights against the harm that the child might suffer if removed from the
resource placement. See K.H.O., 161 N.J. at 355–56 (considering expert
testimony when evaluating the fourth prong).
Fred contends that Judge Velazquez erred when he held that the Division
had proven the fourth prong because the lack of appropriate parenting time
hindered his ability to bond with John. We reject that argument. As we have
noted, the lack of parenting time in this case is the direct result of Fred's decision
to engage in serious criminal activity warranting lengthy incarceration. His
absence from John's life and resulting paucity of parenting time cannot be
attributed to the Division. To the contrary, he alone is responsible for that
circumstance.
In any event, we find ample, substantial, and credible evidence in the
record to support the trial court's conclusion that the termination of Fred's
parental rights would not do more harm than good. John and Fred barely have
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a bond, and John is not comfortable around his father. Fred lacks the necessary
basic parenting skills and suffers from unstable moods. The trial court
concluded, moreover, that the danger posed by Fred's parenting deficits would
only be exacerbated by John's special needs. In contrast, the bond between John
and Susan is strong. She has provided stability, encouragement, instruction, and
protection.
V.
In sum, we hold that the trial court properly found that clear and
convincing evidence was adduced by the Division to establish all four prongs of
the statutory best interest test. The record, which includes credible and
undisputed testimony of two qualified experts, amply supports the trial court's
conclusion that Fred is unable to provide John a safe, stable, and permanent
home. Given his history of addiction and mental illness, and his penchant for
committing crimes and acts of violence, his unfitness to serve as John's parent
will not change in the foreseeable future. Meanwhile, the termination judgment
paves the way for John to be adopted by his aunt, who can provide him with
permanency, stability, and love throughout his childhood and beyond.
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To the extent we have not already addressed them, any additional
arguments Fred has made on appeal lack sufficient merit to warrant discussion
in this opinion. R. 2:11-3(e)(1)(E).
Affirm.
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