DCPP VS. Y.H.B. AND D.L.J., SR., IN THE MATTER OF THE GUARDIANSHIP OF D.L.J., JR. (FG-07-0089-19, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0267-19T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
Y.H.B.,
Defendant-Appellant,
and
D.L.J., SR. (Deceased),
Defendant.
IN THE MATTER OF THE
GUARDIANSHIP OF D.L.J., JR.,
a Minor.
Submitted May 27, 2020 - Decided July 6, 2020
Before Judges Accurso, Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0089-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; James Daniel O'Kelly, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Lisa Doreen Cerasia, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd S. Wilson,
Designated Counsel, on the brief).
PER CURIAM
Defendant Y.H.B. appeals from the Family Part's August 14, 2019
judgment terminating her parental rights to her third child, her now eleven-
year-old-son D.L.J., Jr. (Davon).1 She contends the Division of Child
Protection and Permanency failed to establish the third prong of the best
interests standard by clear and convincing evidence. Specifically, defendant
argues the Division did not properly conduct permanency planning for Davon,
and the Family Part's finding that the Division considered alternatives to
1
The names of family members in this opinion are pseudonyms, employed to
protect the child's privacy.
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terminating defendant's parental rights was not based on substantial credible
evidence in the record. She also argues the Division did not establish its
"reasonable efforts" to assist her in light of its failure to consult and cooperate
with her in assessing her relatives for placement of Davon. Finally, defendant
argues the trial court's factual findings on the third prong were "deficient and
incomplete," foreclosing meaningful appellate review.
Davon's Law Guardian joins the Division in urging us to affirm the
judgment. Having considered defendant's arguments in light of the record and
controlling law, we affirm the termination of her parental rights.
Defendant has had a difficult life. She suffered abuse as a child and
spent some period of her childhood in foster care. She has battled drug
addiction for many years, sometimes successfully, and suffered the loss of
Davon's father when the boy was two. Although the Division provided
defendant a home health aide to assist her with her two oldest children in 2007,
she was first substantiated for abuse and neglect following Davon's birth in
May 2009, after they both tested positive for cocaine.
When defendant admitted smoking crack cocaine throughout her
pregnancy, the Division removed all three children from her care, placing the
two older children with their father, R.B., and Davon with his father and
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paternal grandmother. Defendant went into drug treatment and was admitted
into drug court. Dr. Singer evaluated her for the Division and concluded her
test results suggested Narcissistic Personality Disorder with schizoid and
antisocial features, and found she was "experiencing symptoms consistent with
Bi-Polar Disorder mixed with feelings of anxiety." Dr. Singer's opinion was
that defendant should be reunited with her children only if she continued in
drug treatment and could demonstrate continued sobriety.
Although suffering some setbacks in her sobriety, defendant successfully
completed drug treatment, the Division assisted her in obtaining affordable
housing, she got a job and was reunited with her children in the summer of
2010. Defendant continued to struggle with her sobriety, but went back to
school, continued in drug treatment and participated in services geared to
strengthening her parenting skills.
Davon's father died in the fall of 2011 after an illness. Defendant
thereafter struggled with housing and employment. She kept in close contact
with the Division, however, and it assisted her with obtaining affordable
housing and provided her homemaker services early in 2012. Defendant
graduated from drug court in May 2012, and the Division closed her case
shortly thereafter.
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Five years later, in the fall of 2017, the Division became re-involved
with the family after receiving reports that defendant was again using cocaine.
The Division substantiated defendant for abuse and neglect after she tested
positive for cocaine in December 2017. Defendant was unemployed, and her
home was in foreclosure. The Division again removed Davon, then eight-
years-old, from her care in January 2018 and placed him in a non-relative
resource home. Defendant's other children were living with their father.
Defendant's involvement with the Division this time, however, was
different. Defendant did not participate in drug treatment, despite the
Division's many efforts to engage her in treatment. She failed to stay in
contact with the Division and rarely visited Davon, although he was desperate
to see her, and she very obviously loved him. His behavior at school
worsened; he would walk out of classrooms and was disciplined for fighting.
On the recommendation of his school, he was enrolled in the Rutgers
Challenge Program for education services and therapy. Defendant admitted to
the Division's caseworker that she could not abstain from cocaine for any
length of time. She became homeless.
In December 2018, the court approved the Division's goal of adoption
for Davon, and it filed its complaint for guardianship in early 2019. Defendant
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knew she was at risk of losing Davon forever, and acknowledged to the case
worker she knew she had to get sober, but still did not enter drug treatment.
She continued to visit only rarely. She missed Davon's graduation from the
Rutgers program and admitted to the caseworker she did not visit because she
did not want her son to see her in the condition she was in. She did not appear
at appointments for psychological and bonding evaluations and failed to
appear for the guardianship trial.
The Division presented the testimony of the assigned permanency
worker, as well as the assigned adoption worker, an adoption supervisor and
Dr. Singer, and entered its records in evidence, subject to appropriate hearsay
objections. Neither defendant nor the Law Guardian called any witnesses or
offered anything in evidence.
The Division workers testified that defendant initially offered only her
brother Aaron as someone who could care for Davon. He was ruled out in
mid-2018 because his apartment was too small to accommodate his nephew.
The court subsequently ordered defendant to supply the Division with
additional names, which she eventually did. In December 2018, she suggested
another brother, Jim, and his wife, as well as Davon's paternal aunt. The
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Division also contacted the father of defendant's two older children, but he
refused to take the Division's calls.
Defendant's brother Jim and his wife were interested in assuming
Davon's care and Davon likewise expressed his desire to live with them in the
event his mother couldn't regain custody. Davon's aunt and her wife also
expressed interest in providing a home for Davon. Neither was employed at
the time, however, and they kept several dogs, including a pit bull they
initially would not let Division workers see. Davon expressed some fear of the
dogs.
The Division pursued Davon's preference for his uncle and initially
appeared to rule out Davon's aunt. The Division worked to assess the uncle's
home, and he and his wife took Davon with them on a family vacation in the
spring of 2019. The Division's plan for Davon's placement and ultimate
adoption by his Uncle Jim, however, was thwarted when he and his wife took
themselves out of contention just weeks before trial. The Division went back
to Davon's aunt, whom it had continued to communicate with in the event
adoption by Davon's Uncle Jim fell through. Davon's aunt continued to
express interest in adopting Davon. She, however, was in the process of
moving to North Carolina, although she and her wife had not yet settled on a
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home, delaying the Division's efforts to either place Davon with them or
institute an interstate assessment. The adoption worker testified Davon was
willing to be adopted by his aunt if adoption by his uncle was not possible.
Queried by the worker about his aunt's dogs, Davon told her he had been afraid
of them but was not so now.
The Division's adoption supervisor testified that the Division, while
hopeful that Davon would be adopted by his aunt and assigning priority to that
goal, would concurrently pursue select home adoption. She testified Davon
had been diagnosed with adjustment disorder and oppositional defiant
disorder. She also noted he had successfully completed the Challenge program
and returned to a school setting, where his academic and behavioral challenges
were being addressed. Davon was also working with a therapist. The
supervisor noted the boy's age, generally pleasant disposition and many
interests and expressed confidence he would be adopted, notwithstanding his
special needs.
Dr. Singer testified about his 2009 evaluation of defendant and his belief
at that time that defendant had a good chance of becoming an adequate parent
so long as she complied with certain recommendations, including remaining
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drug free. He also testified defendant did not appear for her scheduled
appointments with him in this proceeding.
Based on a detailed rendition of the facts adduced at trial and her
assessments of the credibility of the witnesses who testified, Judge
Grimbergen determined the Division established all four prongs of the best
interests standard by clear and convincing evidence. She found defendant's
persistent and untreated drug problem posed a substantial risk of harm to
Davon, and her failure to timely provide relative resources caused him to
remain in an unrelated resource home not committed to his adoption.
Defendant's unwillingness to address her problems and failure to even visit
Davon regularly during his almost nineteen months in placement demonstrated
her inability to eliminate the harm she had caused her son.
Cataloging the many services the Division attempted to provide
defendant, the judge concluded the Division easily met its obligation to
provide her the services she needed to correct the conditions that led to
Davon's placement. The judge also found the Division had explored, without
success, alternatives to termination, including assessing all relative placement
options, while still expressing the hope that Davon's aunt would be able to
become a viable placement for him.
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Finally, the judge concluded defendant was simply not committed to
Davon. Defendant did not complete services or make any meaningful effort to
end her cocaine use. She failed to consistently visit her son or maintain
contact with the Division. She failed to participate in psychological or
bonding evaluations and didn't appear at trial. The judge found Davon wanted
to be reunified with his mother, but the evidence demonstrated
overwhelmingly that she is incapable of becoming an option for him, and
accordingly, that termination of defendant's parental rights would not do more
harm than good.
Our review of a trial court's decision to terminate parental rights is
limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012). We generally "defer to the factual findings of the trial court because it
has the opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; it has a 'feel of the case' that can never be
realized by a review of the cold record." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 293 (2007)).
Our review convinces us that Judge Grimbergen's findings are amply
supported by the trial testimony. Sadly, defendant never managed to get free
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of her drug problem so as to provide Davon with a safe and stable home at any
point, and she let months go by without any effort to see him. "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." In
re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
We reject defendant's argument that the Division did not properly
conduct permanency planning for Davon and that the trial judge failed to
consider alternatives to terminating her parental rights. There is a statutory
preference for the temporary placement of children with suitable relatives
pending the ultimate determination of the children's future. N.J.S.A. 30 :4C-
12.1(a). Although it is the Division's goal "to place, whenever possible,
children with relatives," N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J.
Super. 623, 636 (App. Div. 2002), "there is no presumption in favor of
placement with relatives." N.J. Div. of Youth and Family Servs. v. K.L.W.,
419 N.J. Super. 568, 580 (App. Div. 2011). "[U]ltimately the question is what
was in [the child's] best interest based upon the circumstances as they existed
at the time of the final hearing." N.J. Div. of Youth & Family Servs. v. M.F.,
357 N.J. Super. 515, 527 (App. Div. 2003).
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We are satisfied the Division properly assessed potential relatives for
placement. We find nothing inappropriate in the Division's determination to
prioritize Davon's placement with his Uncle Jim. Jim and his wife expressed
their commitment to Davon, visited him, and included him in a family
vacation. Moreover, Davon expressed an unqualified desire to live with his
uncle and his family if his mother couldn't reassume his care. That they
unfortunately changed their minds about adopting him just before trial doesn't
make the Division's decision to prioritize them over Davon's aunt
unreasonable.
Further, defendant points to nothing in the record to support her
assertion that the termination of her parental rights should have been delayed
until the Division's assessment of Davon's aunt was complete. At the time of
trial, Davon's aunt had not provided an address in North Carolina to permit the
Division to begin an interstate assessment of her new home. And there is
nothing in the record to indicate the assessment could occur quickly or that its
success was guaranteed. The salient facts were that Davon had already been in
placement for almost nineteen months, a return to defendant's care was
untenable, and the judge believed the witness's testimony that select home
adoption was a viable alternative for Davon.
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Defendant's remaining arguments, to the extent we have not addressed
them, lack sufficient merit to warrant discussion in a written opinion. See R.
2:11-3(e)(1)(E).
We are satisfied the record supports the judge's findings that Davon's
safety, health and development were endangered by defendant, who, unwilling
or unable to eliminate the harm, refused and failed to complete the services
offered, that there were no viable alternatives to termination, and that
termination of her parental rights will not do more harm than good. We affirm
the judgment substantially for the reasons expressed by Judge Grimbergen in
her written opinion of August 14, 2019.
Affirmed.
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