On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FG-06-23-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Coburn and Chambers.
Defendants D.C., the father, and W.H.C., the mother, appeal from the termination of their parental rights to D.L.C. The trial was held on August 28, November 6, and December 4, 2006. The trial court placed its findings on the record on December 4, 2006, terminating the parental rights of both parents. The guardian for the child supports the termination of parental rights.
This child has never lived with his biological parents. Both the mother and child tested positive for cocaine upon the child's birth on September 30, 2004. Due to this exposure to cocaine, the child was born prematurely and underweight with an enlarged heart and a small head circumference. While the father testified that he was unaware the mother was using cocaine when she was pregnant, the trial court did not find that testimony credible. The trial court found incredible the mother's explanation that she tested positive for cocaine because she was doing undercover work for the police and was thereby exposed to cocaine.
Shortly after birth, the child was placed in foster care, where he has remained. At the time of trial, the New Jersey Division of Youth and Family Services (DYFS) planned to place him in a preadoptive home. The child has developmental and speech delays and requires speech and occupational therapy. Bonding evaluations indicate that he is not bonded to either parent and that termination of the parental relationship is "highly unlikely" to result in "serious or enduring harm" to the child.
The mother has a long history of drug use. Indeed, on May 3 and May 18, 2006, while this case was pending, she tested positive for cocaine. She did not attend the drug treatment programs made available to her by DYFS. The trial court found that "[s]he has a very serious substance dependence. Mental health problems . . . significantly decrease her parenting capacity to provide a minimum level of safe, reliable, consistent and stable parenting for her son. Placement of this child with [the mother] is highly likely to place him at high risk for harm." Dr. Linda Jeffery, a psychologist who conducted a bonding and psychological evaluation of the mother, found that the mother had a history of drug use and depression, and was unprepared for even minimal parenting. While the mother's visits with the child initially were consistent, over time they became sporadic. During a portion of this time she was incarcerated. The mother attended only two of eight parenting classes. In her bonding evaluation for the mother, Dr. Jeffery found that the child exhibited an insecure attachment to the mother and that severance of the bond was "highly unlikely to cause him serious and enduring harm."
While the father is not a drug user, the trial court found that he was unable to sever his relationship with the mother, and that relationship presented a threat of harm to the child. At the hearing, the father asserted that three months earlier, he had obtained a residence separate from the mother. The trial court found, however, that this separate household was a sham and that the father continued to maintain a relationship with the mother. The trial court did not believe that the father would be able to keep the child safe and secure from the mother. The father has some criminal history and has been incarcerated three times since the child was born. Dr. Jeffery found that based on a psychological evaluation conducted in May 2006, the father's "capacity to provide safe and stable parenting for his son is severely decreased by his personality and emotional problems." The doctor did not believe that the father could protect the child from the mother. The father also missed numerous visits with the child. While some of those missed visits were due to the fact that he was in jail, the trial court found that his time in jail did not account for all of the missed visits. He attended seven of eight parenting classes. In her bonding evaluation for the father, Dr. Jeffery found no parental bond between the child and the father, and concluded that severing the relationship was "highly unlikely to cause [D.C.] serious and enduring harm."
The trial court applied the four prong test for the termination of parental rights under N.J.S.A. 30:4C-15.1(a), and found that DYFS had proven all four prongs by clear and convincing evidence.
Under prong one, the court must be satisfied by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986) (holding that the standard of proof for termination of parental rights is clear and convincing evidence). Here, the trial court found that the mother's drug use during her pregnancy physically harmed the child and her continued drug dependency would harm the child. The father, by allowing and enabling the mother's drug use, contributed to the harm to the child, and his inability to separate himself from the mother would continue to harm the child, since the child would be exposed to the mother if he were placed with the father.
The second prong requires a showing that "[t]he 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 or permanent placement will add to the harm." Id. at 30:4C-15.1(a)(2). Here the trial court found that the mother, through her continued drug use, was unable or unwilling to eliminate the harm, and that the father, due to his unwillingness or inability to separate from the mother, was also unwilling or unable to eliminate the harm posed by the mother's drug abuse. As a result, the court concluded that both parents were unable to provide a safe and stable home for the child.
The trial court also found that the third prong was satisfied. Under the third prong, DYFS must have made "reasonable efforts to provide services to help the parents correct the circumstances which led to the child's placement outside the home," and the court must have "considered alternatives to termination of parental rights." Id. at 30:4C-15.1(a)(3). The mother did not attend any of the drug treatment programs offered her. While the father did attend drug, psychological and psychiatric evaluations required by DYFS, he had taken only seven of the eight required parenting ...