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New Jersey Division of Youth v. K.C

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 11, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.C., DEFENDANT, AND A.J.C., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF H.B.R.C., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-32-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2012 -

Before Judges Grall and Alvarez.

Defendant A.J.C. appeals the February 4, 2010 Family Part judgment terminating his parental rights to H.C., born September 21, 2007, pursuant to N.J.S.A. 30:4C-15(c) and -15.1.*fn1 For the reasons that follow, we affirm.

Care, custody, and supervision of H.C. was initially granted on October 11, 2007, to the Division of Youth and Family Services (the Division) after the child tested positive for opiates at birth, requiring placement in a specialized pediatric unit designed to treat infants experiencing drug withdrawal. H.C. was classified as medically fragile, in need of intensive medical care. In March 2008, H.C. was placed with his maternal grandmother and has lived with her since. She wishes to adopt.

Upon the Division's filing of a complaint for termination of parental rights, an order to show cause issued on February 9, 2009, explaining, among other things, that failure to appear in court might result in the entry of a default. A.J.C. failed to appear for a case management conference on September 15, 2009, and default was entered against him. Although the default was vacated at his attorney's request on December 10, 2009, despite A.J.C.'s failure to appear on that occasion, it was re-entered on April 5, 2010, when he again failed to appear. After conducting a proof hearing over two days, the court entered its judgment terminating parental rights.

We glean the following facts from the hearing record. Initially, A.J.C. had regularly visited with the child and expressed an interest in gaining custody. When evaluated in October 2007, shortly after the Division's involvement with the family began, it was recommended that he become involved in individual counseling, a parenting skills class, visit H.C. while supervised, and undergo a drug and alcohol evaluation. A.J.C. was found to require treatment due to issues with prescription drugs, but refused to comply, claiming treatment conflicted with his work schedule. A.J.C. briefly attended individual counseling as well as drug treatment, but tested positive for Oxycodone several times in late 2007 and early 2008. He did complete a parenting skills class. In the 2007 Title 9 proceeding, A.J.C. and the child's mother stipulated that her continued use of prescription medications while pregnant, and her failure to even inform her physician she was pregnant, constituted abuse and neglect.

During the summer of 2008, the Division encountered some difficulty contacting A.J.C. In August 2008, he tested positive for opioids and drug and alcohol treatment was recommended. Although A.J.C. enrolled in a drug treatment program in January 2009, he was later terminated for noncompliance. He also complained that his work schedule created difficulties with visiting H.C.

By the end of 2009, A.J.C.'s visits with the child became infrequent. He failed to attend meetings regarding the child's status vis-a-vis the guardianship proceeding.

As we have said, ultimately, A.J.C. failed to appear in court September 15, 2009, December 10, 2009, and at the final permanency hearing on April 5, 2010. He has not visited with the child since Christmas 2009.

At the proof hearing, the Division's case worker, Linda Zappile, testified that she had not spoken to A.J.C. during the prior year. Zappile also testified about the multiple evaluations, treatment options, and parenting education, which the Division offered to A.J.C.

The court rendered its decision from the bench on February 3, 2011, including extensive fact-finding regarding A.J.C.'s failure to submit to the majority of the scheduled urine screens, and his positive drug test results when he did submit, including a positive test for methamphetamines on November 17, 2008.

By way of preamble to her decision, the Family Part judge detailed the parents' history of involvement with the Division, including supervised visitation, multiple offers of services, and the fact that A.J.C. had virtually ceased appearing in court or even seeing his child for the year and a half prior. The court then opined that the Division had established sufficient proof by clear and convincing evidence to meet the four prongs of the statutory test. See N.J.S.A. 30:4C-15.1(a). Taking into account the prior adjudication of abuse and neglect, she concluded that the first prong was met not only by stipulation, but also by A.J.C.'s failure to participate in any fashion in the child's life. She noted that at birth the child required special services because he was born opiate-dependent, and was subsequently found to suffer from speech delays. A.J.C. did not participate in the process of assisting the child in attaining appropriate developmental milestones. In the judge's opinion, the Division established that the child's safety, health, and development were endangered by A.J.C.'s "actions and inactions."

As to the second prong, the judge found that the Division readily demonstrated that A.J.C. was unwilling to eliminate the harm facing the child because of his continuing involvement with drugs. As she put it, if A.J.C. had "resumed an ability to care for young children, nobody with any professional responsibility in this matter knows that." A.J.C. had "stopped appearing in court, . . . stopped dialoging with the Division, and therefore for all intents and purposes, [he has] not addressed the harms that led to the placement of the child . . . ." She was not presented with expert testimony regarding whether removal from the resource family would cause enduring harm to the child, but did not consider it to be necessary in this case.

As to the third prong, the court detailed the Division's substantial unsuccessful efforts to provide services to A.J.C. The Division's efforts were reasonable, and A.J.C. did not engage in any program except a parenting class.

As to the fourth prong, the court concluded that termination of parental rights would not do more harm than good in light of A.J.C.'s "lack of contact with the child in the last year."

On appeal, A.J.C. alleges the court erred with regard to the following:

POINT 1 - THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A

JUDGMENT TERMINATING A.J.C.'S PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY [N.J.S.A.] 30:4C-15 AND 30:4C-15.1 POINT 1(A) - THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD'S HEALTH AND DEVELOPMENT HAD BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG POINT 1(B) - THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT WAS 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 UNDER THE SECOND PRONG POINT 1(C) - THE TRIAL COURT ERRED IN FAILING TO CONSIDER ALTERNATIVES TO TERMINATION OF A.J.C.'S PARENTAL RIGHTS UNDER THE THIRD PRONG POINT 1(D) - THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF A.J.C.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD Parental rights can be terminated only when the State proves that:

(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. [N.J.S.A. 30:4C-15.1(a).]

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice[.]'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)), aff'd and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). Additionally, the four prongs of the statutory test must be considered as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Clear and convincing" evidence is evidence which results in a "firm belief or conviction as to the truth of the allegations sought to be established." Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record overall that the Division met the statutory test by such evidence despite A.J.C.'s attacks as to each prong.

A.J.C. may not have physically harmed H.C., but his acknowledged drug addiction went untreated, placing the child's well-being at risk. This included the use of prescription medications despite the certain knowledge that the continued abuse of these drugs would result in the termination of parental rights, and, on at least one occasion, methamphetamines. Notably, A.J.C. did nothing regarding the mother's abuse of drugs during pregnancy and failure to obtain prenatal care. A.J.C.'s own abuse of prescription drugs, failure to complete drug treatment, failure to submit to drug screens, and eventual failure to even maintain contact with the child placed the child's safety, health, and development at risk. We therefore agree with the court's conclusion that the first prong of the statutory test was met by clear and convincing evidence.

A.J.C.'s inability to address his drug abuse issues simultaneously provides clear and convincing evidence of an unwillingness or inability to eliminate the harm posed to the child. The second prong of the statutory test is thereby satisfied.

A.J.C. contends that In re Guardianship of J.C., 129 N.J. 1 (1992), requires expert testimony as to the impact separation from the resource parents may have on the child in order to completely address the second prong of the test. Where both parents appear to have abandoned any interest in the child, certainly any interest in the litigation, no expert testimony is necessary. The case does not compel any other conclusion. Here, since the child's parent defaulted, and the child had lived continuously with the resource family virtually since birth, no expert testimony was required to address the self-evident harm that would result from the child's removal from his grandmother's home, the only home he has ever known.

Regarding the third prong, the Division documented many reasonable efforts at extending services to A.J.C., to no avail. On this point, A.J.C. contends his mother, who resides in Colorado, should have been considered as a potential alternative to termination of his parental rights. A.J.C. did, in the spring of 2009, suggest that the Division consider his mother as a possible placement and rule out kinship legal guardianship before permitting the maternal grandmother to adopt. But because A.J.C. did not propose his mother as a possible placement until shortly before he stopped participating in the proceedings, the issue became moot. The judge actually inquired at the April 5, 2009, hearing whether A.J.C.'s mother had been investigated; however, at that point A.J.C. had already failed to appear. She said as a result that no additional investigation into the suitability of A.J.C.'s mother would be required. In light of his failures to appear and the ensuing default, it would not have been reasonable to impose that additional burden on the Division.

"[C]hildren have an essential and overriding interest in stability and [a permanent home]." Id. at 26. Here, where A.J.C. not only failed to engage in services, but actually failed to visit his infant son and participate in court proceedings for approximately one and a half years prior to the decision of the court, termination of parental rights will not do more harm than good. Undoubtedly, H.C. will experience a loss as a result. He will have a better recovery from the loss of a parent whom he does not know, than he would from the loss of the only parent he has known - the maternal grandmother. Termination of parental rights in this case will not do more harm than good, and we agree with the judge that the Division therefore met the fourth prong of the test.

As we have previously said, "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." 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).

"A final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). It is always a grave loss to a child to lose biological parents. It is for that reason "doubts are to be resolved against" disruption of the relationship. Id. at 16. But permanence, stability, and support for emotional growth are also crucial to a child's upbringing and must be taken into consideration. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986).

The Division established that A.J.C. could not provide H.C. with the stable home to which he is entitled. We therefore agree with the trial judge that the State met its statutory burden by clear and convincing evidence.

Affirmed.


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