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New Jersey Division of Youth and Family Services v. J.L.V. and J.M.B


January 9, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-18-10.

Per curiam.



Submitted December 12, 2011

Before Judges Grall and Alvarez.

In appeals that we have consolidated, the parents of A.V. contend that the trial court erred in terminating their respective parental rights. J.V. is A.V.'s father and J.B. is her mother. The law guardian and the Division of Youth and Family Services (Division) oppose the parents' appeals. We affirm, because the judgments are supported by evidence clearly and convincingly establishing that termination is in the best interest of A.V. as defined in N.J.S.A. 30:4C-15.1a. In re J.N.H., 172 N.J. 440, 471-72 (2002).

On June 1, 2008, J.V. and J.B. were arrested in Newark by a police officer who found heroin in their car. Their daughter A.V., who was then two-and-one-half-years-old, was with them.

J.B. admits that she attempted to swallow the heroin when the officer approached, and J.V. and J.B. later explained they had heroin because they were trying to get off methadone and thought it would help. Both had well-established histories of substance abuse, and J.V. acknowledged multiple incarcerations. Because the parents were taken into custody, the police contacted the Division, and the Division commenced this litigation by way of an order to show cause and complaint filed pursuant to N.J.S.A. 9:6-8.30 and N.J.S.A. 30:4C-12. At the parents' request, A.V. was placed with J.V.'s sister, S.V., who lives in Hackensack. During the first hearing, J.B. stipulated that A.V. was endangered on the night of the arrest.

At the time of their arrest, J.V., J.B. and A.V. were living with J.B.'s parents and son born of a prior relationship. J.B. had given her parents custody of her son in 2004.

The Division contacted the maternal grandparents soon after A.V. was placed with S.V. The grandparents said they had spoken to S.V. and had no concerns about A.V. being in her care. The maternal grandmother stated she and her husband felt A.V. was fine with S.V., and that they could not care for A.V. because her husband's health was not good and they already had responsibility for J.B.'s son. When the potential for termination of the parents' parental rights and A.V.'s adoption became clear later in the proceedings, the maternal grandparents asked to be considered as potential caregivers. The Division did not consider placement in their home an option because A.V.'s parents were living there at the time. Accordingly, A.V. remained in S.V.'s care between June 1, 2008 and November 17, 2010, the date on which the trial court determined that the termination of parental rights was in A.V.'s best interest.

During the early stages of the litigation, the Division's efforts to provide services for the parents were complicated by the parents' transient lifestyle and failure to maintain contact with the Division as they moved from place to place. Although both parents were placed on probation in New Jersey as a consequence of their arrest for possession of heroin, they lived in motels in New Jersey for less than a month after J.V.'s release from jail in early August, and then returned to the maternal grandparents' home in Pennsylvania. They had canceled a meeting with the Division and promised to reschedule; however, they did not tell the Division they had moved or call to reschedule the appointment to arrange services. They had not told S.V. about their move either.

The Division eventually reached A.V.'s parents at the home of the maternal grandparents. On October 22, the trial court entered an order that contemplated transfer of this case to Pennsylvania's courts and protective services agency, but J.B. and J.V. left Pennsylvania and returned to New Jersey after it was entered. By late February 2009, about nine months after A.V. had been removed from their care, they again returned to Pennsylvania to live with J.B.'s parents. At that time, J.B. was expecting another baby. Once again, the parents failed to advise the Division of their plans before leaving for Pennsylvania. Although the Division had scheduled parental evaluations and notified the parents, they did not keep the appointments. The parents first attended a meeting to arrange services on April 16, 2009, more than ten months after A.V. was removed from their care. By that time, the trial court had approved the Division's plan for termination of parental rights and A.V.'s adoption by S.V.

The plan for services to which the parents agreed required them to attend substance abuse treatment, undergo psychological assessments, visit A.V. weekly in S.V.'s home and cooperate with other services offered by the Division. The parents signed the agreement on April 20, 2009, and with the assistance of the Division they were enrolled in substance abuse programs in Pennsylvania that month. By May, the Division also arranged for parenting classes and evaluations in Pennsylvania.

In June, J.B. gave birth to her third child; the baby tested positive for methadone and another drug that had been prescribed for J.B. The parents' drug-treatment program included methadone therapy. In September, after a report on the parents' behavior in a parenting class, the Division arranged additional services - an anger management program for J.V. and couple's counseling.

The parents did not take advantage of the services. They were dismissed from parenting classes due to their attendance record, but the discharge note also stated that J.V. was negative, combative and disrespectful to J.B. and others during the class. J.V. was discharged due to his failure to attend counseling and his breach of program rules prohibiting drug use; the discharge note stated that his prognosis for recovery was "poor." J.B. did better, she participated from April through November 30, 2009 and was compliant, albeit still taking methadone, as of November 30. The parties failed to attend the couple's counseling arranged by the Division in Pennsylvania, but they attended four of five sessions in a "Healthy Relationship Class" in March 2010. Six months before the trial court's decision in the termination case, J.B. received a certificate for completing a program entitled "Life Skills for Healthy Living." At the time of trial, both parents were receiving drug treatment in Pennsylvania and complying with that treatment.

Neither J.B. nor J.V. had verifiable employment during the course of the litigation. According to J.V., he did odd jobs and was paid "under the table." J.B. asserted that she worked part-time for a landscaping business when needed and was paid off the books. At various times during this litigation, one or both of the parents had at least one warrant for their arrest outstanding. In fact, one court hearing was postponed because they were both arrested.

The parents also failed to maintain regular contact with A.V. Over the course of the litigation, the parents' visitation with A.V. was sporadic. There were periods of over a month during which they did not contact S.V. and did not see A.V. For example, there was a three-and-one-half-week period without visitation in November 2008 and no visits between December 7, 2008 and the first Sunday in February 2009. When the parents did attend, the visits were generally positive.

Dr. Peter DeNigris evaluated A.V.'s bond with each of her parents and S.V. in December 2009. He described A.V.'s bond with her parents as follows: "the criteria found in mutually-gratifying parent/child attachments were not pronounced." He explained that this was not surprising, because J.V. and J.B. had not been "consistent figures in her life" and had allowed "their ongoing poor judgment" to interrupt their opportunity to bond normally with A.V. In contrast, he concluded that the child had developed a bond with S.V. and would likely suffer irremediable harm if removed from her care.

Each parent had an expert who opined that the parent had the capacity to parent if they kept their addiction under control and disagreed with Dr. DeNigris's assessment of the parental bond. Neither of those experts, however, indicated that either parent was presently capable of parenting A.V. The trial court credited Dr. DeNigris's testimony.

This court's review of judgments terminating parental rights is highly deferential. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We must give deference to the trial court's credibility determinations and uphold factual findings that are supported by "adequate, substantial and credible evidence." Id. at 279 (internal quotation mark omitted). Where there is a challenge to the trial court's "evaluation of the underlying facts and the implications to be drawn therefrom," the question for this court is whether the determination is "so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks omitted).

Both parents challenge the court's findings under the four prongs of the best interest test governing termination of parental rights. The test is stated in N.J.S.A. 30:4C-15.1a as follows:

(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 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.

The four prongs of this test "are not discrete and separate"; rather, they "relate," "overlap" and "provide a comprehensive standard that identifies a child's best interests." In re K.H.O., 161 N.J. 337, 348 (1999). In recognition of the parents' constitutional right to rear their children, clear and convincing proof of the essential components of the standard is required. Id. at 346-48.

"Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." Id. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. Here the parents' arrest for possession of heroin occurred in circumstances that required A.V.'s placement with a relative in order to eliminate the obvious dangers inherent in leaving a two-and-one-half-year-old without any supervision or care. Although we could not conclude that this brief period of endangerment amounted to an egregious harm, the trial court's finding of harm did not rest on that incident alone but on the impact of the parents' subsequent conduct, which prevented them from reassuming their parental role when they were released from custody. A finding of harm requires a "focus upon whether . . . the parents are giving the child the nurture and affection" that is not a function of their financial resources. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). Here, the parents withdrew their nurture and care from A.V. for extended periods by failing to keep in touch with S.V., who was caring for A.V., the maternal grandparents, and the Division. See

K.H.O., supra, 161 N.J. at 352 (concluding that a mother's failure to provide continuing care for her child or to take any measures to help her child following the initial harm was properly considered as a harm under the first prong of the statutory test). Accordingly, we reject the parents' claim that there was inadequate evidence of harm to prove the first prong.

We have considered the record in light of the parents' arguments on the remaining three prongs and concluded that they lack sufficient merit to warrant discussion beyond the observations that follow. R. 2:11-3(e)(1)(E). Kinship legal guardianship was not an available alternative to termination of parental rights in this case, because S.V. was willing to adopt A.V.; moreover, the trial court was not wide of the mark in concluding that A.V.'s need for permanency precluded affording the parents additional time to address their addiction to a point that would permit them to function as A.V.'s parents. See N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508-09 (2004) (discussing kinship legal guardianship, its relationship to termination and parents continued inability to assume responsibility for a child's care); In re G.P.B., Jr., 161 N.J. 396, 404 (1999) (discussing the child's right to permanency).



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