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New Jersey Division of Youth and Family Services v. C.V.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 1, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.V., DEFENDANT-APPELLANT, AND J.C., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.N.C. AND J.A.C., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-15-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2010

Before Judges Fisher, Simonelli and Fasciale.

In this appeal, defendant C.V. (defendant) appeals the termination of her parental rights to two children, J.N.C., who was born on December 10, 1998, and J.A.C., who was born on April 22, 2005. She argues the evidence was of insufficient weight and termination was inequitable under the circumstances. We disagree with those arguments and affirm.*fn1

The Division of Youth and Family Services (the Division) first became involved with this family in 1999 when it received a referral that defendant had abused J.N.C. Although the allegations were not substantiated, the family was found in need of services. As a result, the Division was intermittently involved with this family during the years that followed. In February 2007, after investigating a claim of domestic violence, police made a referral to the Division that the family had no heat and the home was unkempt. Based upon its investigation, the Division referred the parents for substance abuse assessments. J.C., the children's father, acknowledged his use of crack cocaine; he was subsequently incarcerated for violating a domestic violence restraining order.

In May 2007, the Division received a referral that defendant was using heroin. She denied the charge. The next month, the Division received another similar referral and a urine sample taken from defendant tested positive for opiates. Defendant was referred for treatment but did not attend. She again tested positive for opiates in September after which she acknowledged heroin use. As a result, the children were removed from the home. They remained out of the home when, on February 15, 2008, defendant gave birth; both defendant and the newborn tested positive for crack cocaine.

In the proceedings that followed, defendant was ordered to attend substance abuse treatment and to undergo a psychological evaluation. Only supervised visitation of the children was permitted. In April 2008, defendant entered Sunrise House's inpatient program. The psychological evaluation revealed that defendant was an "immature, dependent, emotionally needy, cognitively limited, depressed neglectful parent." She admitted to the psychologist to "a history of heroin, prescription drugs and cocaine abuse while caring for her children," yet "minimized the effect of her drug use on her children and [her] parenting ability." The psychologist concluded that defendant's prognosis for recovery was "poor." This prognosis proved accurate when defendant was discharged from Sunrise House in May 2008 following two positive urine screens for heroin. Defendant again tested positive for opiates on June 13 and 27, 2008, prompting the trial court to approve the Division's plan of termination of parental rights.

This guardianship action was commenced in September 2008. In early proceedings, defendant was ordered to attend partial hospitalization substance abuse treatment and to submit to random urine screens. She tested positive for cocaine on July 31, 2009, and positive for morphine on August 31, 2009.

The five-day trial took place on nonconsecutive dates between August 2009 and October 2009. In rendering his decision, the trial judge employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(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 . . .;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside 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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986).

The judge determined that the first prong was met by the clear and convincing evidence of defendant's drug abuse, which continued unabated by the time of trial, as briefly outlined above. The judge also found defendant had endangered the children by failing to maintain a stable home for at least the eighteen months preceding the trial, by failing to timely follow up on their medical needs, and by using foul and abusive language in front of the children that included threats of violence directed toward a Division caseworker.

The judge found the second prong was met by defendant's failure to "seriously engage[] in any type of treatment" for her drug issues or address any of the shortcomings that rendered her an unfit parent. The judge found credible, among other things, the opinion of the Division's expert that "placing a child in her care would create an unacceptable risk of harm." He also found that defendant's inability or unwillingness to eliminate the harm was further revealed by her involvement at or about the time of trial with a man who was also a drug abuser.

As for the third prong, the judge correctly found that "[t]he record abounds" with evidence of the Division's reasonable efforts to help defendant correct her problems, which the judge went on to recount in great detail. We find defendant's argument to the contrary to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In finding the fourth prong was also met, the judge recognized that although the older child retained "a strong emotional tie" to defendant, she preferred living with her foster family and recognized that it would be "bad" to reside again with defendant; the judge found no strong attachment between the younger child and defendant. The judge relied upon the Division's experts, whom he found credible, in finding that any harm caused by severing the children's relationship with defendant would be mitigated through their continued attachment to their current caregiver and further counseling. As a result, the judge concluded that termination would not do more harm than good in light of the children's exposure to defendant's drug use, which had "not abated in well over two years," and the attachments the children had with their mother were "fragile at best." The children's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong.

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We must defer to the trial court's findings if supported by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). And we will only disturb factual findings when they are "so wholly unsupportable as to result in a denial of justice." Ibid.; see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998). For these reasons and others more fully described in Judge James A. Farber's oral decision, with which we substantially agree, we affirm the judgment under review.

Affirmed.


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