On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-32-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Waugh and Newman.
C.A.'s parental rights to her two oldest children, J.D. and A.D., were terminated. The father of both children, K.D., does not appeal the termination of his parental rights. Both children currently reside with their paternal grandparents who wish to adopt them.
The Division of Youth and Family Services (DYFS) became involved with the family due to C.A. and K.D.'s use of controlled dangerous substances, in particular marijuana and cocaine. C.A. has not been able to overcome her addiction and has a criminal history involving theft.
C.A. challenges the termination of her rights to J.D. on the basis that J.D. was not in the "care or custody" of DYFS when the guardianship complaint was filed. With respect to both children, C.A. challenges Judge Ronald E. Hoffman's finding that the four prongs of the best interests standard, N.J.S.A. 30:4C-15.1(a), were proven by clear and convincing evidence. Subsequent to the termination of her rights, this court granted C.A. the opportunity to file a Rule 4:50 motion with the trial court while her appeal was pending. C.A. sought relief from the termination of her rights because of post-termination progress she was making under the Intensive Supervision Probation program (ISP). During the remand proceedings, C.A. tested positive for cocaine use, was removed from ISP supervision and reincarcerated. Judge Hoffman denied the Rule 4:50 motion, commenting:
I am more convinced now than ever that the decision that I made in June of 2007 was the appropriate decision and I am very much convinced that the decision that I made terminating the parental rights of [C.A.] and [K.D.] was clearly in the best interest of both of these children.
C.A. appeals both from the orders terminating her parental rights and denying her Rule 4:50 motion. We affirm.
In finding that the children's best interests called for termination of C.A.'s parental rights, Judge Hoffman considered each prong of the four-pronged test. We reiterate each of his relevant findings of facts and conclusions of law. With regard to the first prong under N.J.S.A. 30:4C-15.1(a)(1), which focuses on the harm arising over the parent-child relationship over time and in the foreseeable future, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986), the trial judge stated:
I have no problem finding that the child's health, safety and development certainly was endangered in the past by the parental relationship between both of these biological parents. Both have a long history of substance abuse. There is a history of DYFS involvement. There is a relatively long history of lack of suitable housing, homelessness, a failure to plan or a failure to supervise the children to the point where, with regard to [J.D.], the paternal grandparents sought custody and obtained custody of him. With regard to [A.D.], she in effect was abandoned with a care-giver for a number of days by [C.A.] which caused the Division to get involved, seeking custody of her. I find by clear and convincing evidence that the children's safety, health and development has been in the past endangered by the parental relationship.*fn1
Under the second-prong of the best interests test, pursuant to N.J.S.A. 30:4C-15.1(a)(2) that the parent is unwilling or unable to eliminate the harm to the children and the delay of permanent placement will add to that harm, the trial judge found a likelihood of future harm if C.A.'s parental rights were not terminated:
It's my finding of the psychological evaluation, that she is unable to eliminate the harm facing the child or to provide a safe and stable home for the child. In the past she has had ample opportunity to participate in services, she ultimately did participate, but she failed to participate in a couple at least, a couple inpatient programs or outpatient programs. She failed to appear on multiple occasions for substance abuse evaluations. . . . She did continue to test positive for drugs, and she didn't have any stable housing really until she was incarcerated and housed at Edna Mahan and then ultimately in the three-quarter house.
You can't ignore Dr. Lee's unrebutted recommendations and observations with regard to recidivism and relapse risks. . . . It's my finding by clear and convincing evidence that she's unable to provide a safe and stable home for the children and unable to eliminate the harm facing the children.
The third prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(3) requires DYFS to make reasonable efforts to provide the parent with services to correct the problems that led to the removal of the children from their care. Even though C.A. does not contest the trial judge's findings on this prong, he found, "the Division has made reasonable efforts. That was found at permanency hearings that were conducted here by a preponderance of the evidence. I find hereby clear and convincing evidence that they did make reasonable efforts to provide the services necessary."
The fourth prong of the best interests standard in N.J.S.A. 30:4C-15.1(a) requires the determination of whether the termination of the parental rights will do more harm than good to the children at issue. In cases where the child has been placed in foster care, the necessary inquiry is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). This inquiry requires expert opinion testifying to the strength of the relationship between the child and their biological and foster parents. Ibid.
With respect to this final prong, the trial judge found, [J.D. and A.D.] get along with each other. They get along with their grandparents. The house is appropriate. They're happy. The paternal grandparents are providing for their medical needs. ...