December 14, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.J.V., JR., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-82-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2012 -
Before Judges Lihotz and Ostrer.
We review challenges to a November 9, 2011 Family Part judgment terminating the parental rights of defendant C.V., the father of C.J.V., and granting guardianship of the child to the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division),*fn1 for the purpose of securing his adoption. On appeal, C.V. argues the trial court's findings that the Division satisfied each prong of the best interests test, N.J.S.A. 30:4C-15.1a, were unsupported by clear and convincing evidence. He further maintains his due process rights were violated when the trial court declined his request for adjournment to assure his attendance at trial. We disagree and affirm.
We focus on the facts aiding review of C.V.'s arguments.*fn2
On April 16, 2009, the Division responded to C.V.'s report that J.D., C.J.V.'s mother, was unable to care for the three-year-old because she was abusing drugs and alcohol and was not taking her bipolar disorder medications. The Division's investigation concluded the allegations were unfounded. C.V. again notified the Division on October 22, 2009, reporting that while C.J.V. was in her care, J.D. abused drugs and alcohol, allowed strangers in her home who also abused substances, and would not allow him to see the child despite an order granting him visitation. Following its investigation, the Division concluded the allegations of neglect were substantiated. The Division also learned both C.V. and J.D. engaged in a pattern of substance abuse and domestic violence, which at times occurred in the presence of C.J.V.
C.V. and J.D. attended a meeting with Division representatives to review the family's circumstances, during which C.V. appeared intoxicated, demonstrated aggressive behavior, and was asked to leave. During the meeting, J.D. admitted she and C.V. suffered from substance abuse and engaged in a volatile relationship replete with mutual acts of domestic violence. J.D. also acknowledged her relationship with C.V. had a negative impact on C.J.V., who had developed "anger issues which [we]re evident when [J.D.] t[old C.J.V.] that he can't do something."
The next day C.V. called the Division, admitting he was still intoxicated after using cocaine and drinking alcohol throughout the night. He admitted he consumed alcohol daily and used cocaine occasionally.
The Division arranged for both parents to participate in inpatient substance abuse treatment. C.J.V. was placed with his maternal grandmother, D.D., where he remains.
On December 21, 2009, the Division filed a complaint for custody, care, and supervision of C.J.V. The Family Part judge granted the Division's request for legal custody, care, and supervision, but placed the child in the physical custody of D.D., subject to C.V.'s supervised visitation.
In December 2009, C.V. was admitted to a six-month inpatient substance abuse treatment program at the Salvation Army Adult Rehabilitation Center. He remained drug and alcohol free while participating in the residential program, but left prior to its completion. After approximately one month, he discharged himself "[t]o care for his girlfriend and son."
Over the next eighteen months, the Division extended various services to C.V. to resolve his substance abuse, anger issues, and parenting deficits, originally with the goal of reunifying him with C.J.V. Such services included a referral for a psychiatric evaluation with Dr. Delfin G. Ibanez and a psychological evaluation with Dr. Margaret DeLong; a substance abuse evaluation with Catholic Charities Certified Alcohol and Drug Counselor Vanessa Bell; substance abuse treatment with the New Brunswick Counseling Center; parenting skills training and domestic violence education provided by the Catholic Charities Family Violence Offender program; individual therapy with Dr. Sean Magnan; parenting skills classes with At Home Marital and Family Counseling; urine screenings; supervised visitation; and psychological and bonding evaluations by Donna LoBiondo, Ph.D.
Many services were directed to resolving C.V.'s longstanding substance abuse. He explained that beginning at age thirteen, he regularly consumed alcohol, and later began using marijuana, cocaine, and opiate-based narcotics. He acknowledged alcohol and drugs contributed to the domestic discord with J.D., which often escalated to physical violence. C.V. initially cooperated with the services provided and appeared committed to achieving sobriety for the benefit of his son. C.V. continued visitation with C.J.V., supervised by the Division.
C.V. successfully completed the New Brunswick Counseling Center program, attended thirteen of the twenty sessions with Catholic Charities, and participated in parenting classes. It is noted C.V. tested positive for alcohol on May 28 and July 7, 2010.
Also, C.V. attended individual counseling sessions with Dr. Magnan. Initially, C.V. showed progress during these counseling sessions as he openly discussed the instabilities in his life, including relapsing with substance abuse, his ever-volatile relationship with J.D., his failure to regularly attend meetings, continued unemployment, and lack of stable housing. However, his progress slowed after the first few months, and he "began to exhibit a pattern that would be displayed throughout the remaining course of the treatment, which was regressing whenever his expectations were not met in court." Dr. Magnan observed:
After [C.V.] would not get what he had hoped to at court hearings regarding visitation, he would then not attend treatment sessions or contact any of the services he was required to [attend]. He would then admit to what he had done and then offered assurance that he no longer would miss any sessions.
In his May 20, 2011 report, Dr. Magnan opined C.V. would not and could not "gain any additional benefit" from counseling. According to Dr. Magnan, C.V. would be unable to provide for his son at anytime in the near future because of his unresolved substance abuse issues, his limited "ability . . . to take accountability for his actions[,]" a "lack of impulse control[,]" and his inability "to anticipate the consequences of [his] statements." Therapy was terminated in May 2011.
On January 27, 2011, while C.V. was still attending therapy with Dr. Magnan, the Division filed a complaint for guardianship and the termination of parental rights. J.D. executed an identified surrender of her parental rights in favor of her mother, D.D., on March 28, 2011.
During a May 4, 2011 meeting with the Division to review C.J.V.'s placement, C.V. participated by telephone and informed the Division he left his mother's residence in New Jersey because of "family problems" and moved to Brooklyn, New York, to reside with a female friend. When a Division supervisor advised a background check of anyone living with him and an inspection of the home was necessary if C.V. intended to pursue reunification and present the new location "as a possible place for [C.J.V.]," he shunned the request, stating he would simply return to his mother's home. C.V. later changed his mind, but the Division was unable to investigate the New York residence, as C.V.'s roommate declined to sign a release to allow the Division to proceed.
C.V. also refused to comply with a court-ordered hair follicle test scheduled for May 26, 2011. He appeared at the Division's office and stated "he felt discriminated against and . . . had no reason to undergo a hair follicle test because he tested negative with . . . New Brunswick's Counseling Center." When the caseworker insisted C.V. comply with the court order, he became "very angry," threatened the caseworker, and "stormed out of the office." Eventually, C.V. agreed to submit to the test, but appeared on June 23, 2011, with a shaved head, forcing the technician to use a hair sample from C.V.'s underarm. The results were positive for cocaine. C.V. then admitted consuming alcohol on Memorial Day and relapsing with cocaine "a couple" times in May and June.
Pursuant to Division requests, C.V. submitted to updated psychological evaluations performed by Donna LoBiondo, Ph.D., in April and June 2011. Dr. LoBiondo reported:
[C.V.] is not clinically anxious or psychotic. He is dysphoric, with much of his distress -- including anger and sadness -- stemming from separation from his son, and his perceptions of unfairness and even persecution by the DYFS system. . . . [His admitted consumption of alcohol in May 2011, and his testing positive for cocaine in June 2011] suggest ongoing substance abuse during the evaluation process. This is consistent with [Dr. Magnan]'s early observations of [C.V.]'s tendency to self-sabotage. His demonstrated capacity to undermine his own efforts at self-improvement by gratifying immediate needs, even given the very high stakes involved, suggests a guarded prognosis without additional treatment.
With regard to parenting capacity, [C.V.]'s substance abuse remains his most prominent parenting liability. Despite multiple treatment experiences he remains noncompliant with a drug and alcohol-free lifestyle. Since parental substance abuse places children at risk in a variety of ways, reunification between [C.V.] and his son is not recommended until he re-engages in treatment and subsequently demonstrates a long-term capacity to remain abstinent of all substances.
Given [C.V.]'s lack of readiness to parent his child independently now for the reasons above, termination of his parental rights would not do more harm than good. Termination at this time appears to offer [C.J.V.] necessary permanency, along with a viable attachment alternative to mitigate any potential harm from termination of his father's rights.
In August 2011, in light of C.V.'s failed drug test, his admission to relapsing, and Dr. LoBiondo's recommendations, the Division referred C.V. to Jewish Family and Vocational Services of Middlesex County for counseling and a substance abuse evaluation. C.V. did not attend the scheduled evening appointments, which had been designed to accommodate his work schedule.
In September, trial was scheduled for November 7 and 9, 2011. On November 5, C.V. left a voicemail message for his Division caseworker, confirming he would be attending trial. However, he did not appear on November 7. His attorney stated he did not know of C.V.'s whereabouts, and mentioned C.V. had been unreachable over the prior two weeks. The judge recessed the proceedings to allow C.V.'s counsel to attempt to contact him at his place of employment. When the proceedings resumed, defense counsel stated he had reached C.V., who advised he was unable to leave work because he remained "on [a] probationary period [with] his employer" until December 2011. Counsel moved to adjourn the proceedings until mid-January 2012, which was opposed by the Division and the Law Guardian. The motion was denied and trial commenced.
C.V. again failed to appear for trial on November 9, 2011. Defense counsel stated C.V. had advised "he would make every attempt to be here today. . . . He's not here yet. He did offer next week, possibly next Wednesday as a date. So he asked if he couldn't make it or that if he didn't make it today he asked that I request an adjournment until next week[.]" The adjournment application was denied.
At trial, the Division presented testimony from the assigned caseworker, Jessica Valentin; her supervisor, Deanna Stickle; and its expert, Dr. LoBiondo. Valentin testified regarding the conditions causing C.J.V.'s removal, C.V.'s history of substance abuse, recent failed drug and alcohol screens, C.V.'s relapses with cocaine and alcohol, the services provided by the Division, and C.V.'s participation with those services. Stickle related the Division's review of paternal relatives as possible placements and the reasons found to rule them out, C.V.'s behavior during the May 2011 internal placement meeting, the Division's reason for requesting the hair follicle test, and C.V.'s lack of cooperation throughout that process. She also discussed recent efforts to provide services and accommodate C.V.'s schedule and decision to live in New York.
Dr. LoBiondo related the results of her psychological evaluations of C.V., and the bonding evaluations of C.J.V. with C.V. and D.D. she had conducted in June. Dr. LoBiondo's testimony mirrored the reports she issued following C.V.'s psychological evaluations in April and June. She opined C.V. needed to address his self-defeating behaviors, participate in additional substance abuse treatment, and remain abstinent for at least a year before he could be considered as C.J.V.'s caregiver, because drug use by a parent in the home and/or community renders a child's life unstable.
Dr. LoBiondo also discussed her observations from the bonding evaluations. She noted C.J.V. and his father seemed very close, demonstrated affection with "a lot of kissing and hugging," and engaged in constant, comfortable interaction and free-flowing conversation. C.V. was "appropriately protective and vigilant about his child's safety[,]" "very sensitive to [C.J.V.]'s feelings," and reassuring when the child began to berate himself, telling C.J.V. "it's okay, it's okay, you can relax." The rest of Dr. LoBiondo's observations were similarly favorable. Dr. LoBiondo expressed similar observations with respect to the bonding evaluation of C.J.V. and D.D. The "relationship was very close, seemed very warm," marked by "a free flowing style of communication between them" and C.J.V.'s "enthusiasm for the games that they played." C.J.V. exhibited "a lot of physical affection with [D.D.]," who demonstrated sensitivity toward the circumstances facing the child. Dr. LoBiondo found this significant and "got the feeling that this is something they had discussed before and it was another opportunity that [D.D.] took to say you know this isn't your fault" to C.J.V. Dr. LoBiondo noted D.D. "took care to make sure that [C.J.V.] understood he was blameless in this situation," which was "very sensitive and appropriate."
Dr. LoBiondo explained although C.J.V. demonstrated an equally strong attachment to C.V. as he did to D.D., when asked, C.J.V. stated he preferred living with C.V. Nonetheless, Dr. LoBiondo opined it would be in C.J.V.'s best interest to remain with D.D. because C.V. was "not ready to parent this child" due to his failure to "effectively address his substance issues."
Defense counsel cross-examined the Division's three witnesses and presented expert testimony from Dr. James R. Reynolds, who performed a psychological evaluation of C.V. and a bonding evaluation between C.J.V. and C.V. Dr. Reynolds did not conduct a bonding evaluation of the child and D.D.
Dr. Reynolds' observations from the bonding evaluation mirrored Dr. LoBiondo's, and he observed C.J.V. appeared "safely and securely attached to his father." Dr. Reynolds confirmed C.V. did not evidence any mental health issues and opined C.V.'s substance abuse "appears to be in remission at this time [and t]he incident of domestic violence with respect to [J.D.] appears to have been situational." Dr. Reynolds recommended against termination of C.V.'s parental rights, opining doing so would result in more harm than good. When questioned about C.V.'s recent drug and alcohol relapses, however, Dr. Reynolds stated he was unaware of this information. Dr. Reynolds admitted such information would change his findings from full remission to partial remission and alter his recommendation for reunification because C.V. would need "a good year's worth of abstinence" before he could safely parent C.J.V.
At the conclusion of the evidence, the trial judge delivered an oral opinion, stating his findings of fact and concluding the Division had satisfied, through clear and convincing evidence, the four criteria for termination of parental rights, as required by N.J.S.A. 30:4C-15.1a. C.V. appealed.
As a threshold matter, the scope of appellate review of an award of guardianship and termination of parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" 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)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). Such a feel of the case "can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citations omitted).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted). In those circumstances, we "accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
In our review of a Family Part order terminating parental rights, we must consider the following legal principles. Our Supreme Court has "repeatedly affirmed that parental rights are fundamental and constitutionally protected." N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 285-86 (2004) (citation omitted). While the constitutional protections surrounding family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children[,]" the State must nevertheless exercise its powers over parental rights with "scrupulous adherence to procedural safeguards." Ibid. (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (2002)). See also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). "A parent's right to enjoy a relationship with his or her child is constitutionally protected[,]" K.H.O., supra, 161 N.J. at 346, but this right is not absolute, J.N.H., supra, 172 N.J. at 471. The State has the responsibility to protect minor children from serious physical or emotional harm, which may require severing the parent-child relationship. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599-600 (1986).
"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). Nevertheless, some parents "may at times be acting against the interests of their children[.]" Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (internal quotation marks and citations omitted). When "experience and reality . . . rebut what the law accepts as a starting point," the State's parens patriae obligations are triggered. Ibid. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, a child's need for permanency and stability is a critical factor in guardianship cases.
When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. (citation omitted). "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid. (citing Santosky v. Kramer, 455 U.S. 745, 768, 102 S. Ct. 1388, 1402, 71 L. Ed. 2d 599, 616-17 (1982)).
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). This responsibility, in some cases, requires the parent-child relationship be severed. A.W., supra, 103 N.J. at 599.
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 602-11, was codified in N.J.S.A. 30:4C-15.1a, and requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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.
In their application, the four prongs "'are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interest.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting P.P., supra, 180 N.J. at 506). The considerations involved are "'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of each case." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005) (quoting K.H.O., supra, 161 N.J. at 348).
In this matter, C.V. first challenges the sufficiency of the State's evidence found by the trial judge to support satisfaction of the four-pronged best interests test. He argues the Division can point to no "particular egregious act" showing he endangered the child. Rather, he initiated the Division's intervention in the first place to protect the child. Defendant relies on our opinion in New Jersey Division of Youth & Family Services v. V.T., 423 N.J. Super. 320, 330 (App. Div. 2011), to support his proposition that "testing positive for drug use with some incidents of use during the rehabilitation process does not necessarily create a risk of harm to an individual's child." Further, C.V. argues he has demonstrated a willingness to assure the child is well cared-for and is capable of overcoming any concerns with respect to his ability to fully and adequately assume all parental responsibilities. C.V. also argues the Division did not diligently consider reunification as an option, evidenced by the Division's alleged failure to evaluate the appropriateness of his New York home. Finally, C.V. maintains C.J.V. will suffer more harm than good by terminating his parental rights. We are not persuaded.
To satisfy the first prong, the Division must show "endangerment of the child's health and development resulting from the parental relationship" and that such conditions will likely have continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 348. The absence of an act of physical abuse or neglect is not conclusive, as the court must consider the potential for serious and lasting emotional or psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). This includes "[a] parent's withdrawal of solicitude, nurture, and care for an extended period," which itself is considered "a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Consequently, a parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to a child. Id. at 383.
The inter-related second prong requires evidence "[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 of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2). The harm may include the "serious and enduring emotional or psychological harm" caused by separating the child from his resource family. Ibid.
"Th[is] inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child. Alternatively, under this second criterion, it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm."
[I.S., supra, 202 N.J. at 175 (quoting K.H.O., supra, 161 N.J. at 348-49).]
Here, C.V.'s substance abuse and uncontrolled anger were two significant issues which compromised the safety and security of the home and required C.J.V.'s removal. The court recognized "little, if anything, has been done [by C.V.] by way of treatment and solution . . . [to] alleviate the condition that the [D]ivision found back in December of 2009." C.V. did participate in services, but failed to complete many and could not maintain sobriety, even when he knew his son's future was at stake. C.V. was drunk and high in May and June 2011, signaling his continued substance abuse. The expert testimony of Dr. LoBiondo, as well as Dr. Reynolds, established C.V. must be sober for a year before he can be said to have conquered his substance abuse problems. Moreover, C.V.'s attempted deception by hindering the hair follicle test further evinces his lack of sobriety and continued risk posed to C.J.V. Finally, there was evidence C.J.V. would suffer even greater harm if, after an unsuccessful reunification with C.V., he was removed in the future because of a subsequent relapse.
Drug-dependence was the most significant instability in C.V.'s life, but certainly not the only one. Another major pitfall was the absence of an appropriate living situation for the child, as the Division was not given permission to check C.V.'s New York roommate or access to inspect her apartment. Finally, although C.V. provided proof he obtained employment, the Division was not provided with documentation verifying he was financially able to provide for C.J.V.
We reject as unfounded C.V.'s reliance on our holding in V.T. to suggest the trial judge erred in considering his substance abuse relapses in finding the Division satisfied N.J.S.A. 30:4C-15.1a(2). In V.T., supra, which was not a guardianship matter, we considered whether the defendant's use of drugs and/or alcohol several days prior to a supervised visit with his daughter, who was in the Division's custody, constituted "neglect," pursuant to N.J.S.A. 9:6-8.44. 423 N.J. Super. at 330-32. There was no evidence the defendant was impaired in the presence of the child during the visits. Id. at 331.
Here, the issue is whether C.V.'s failure to remain abstinent evinces an inability to provide a safe and stable environment to raise a young child. Moreover, C.V.'s substance abuse was first discovered to have occurred while the child was in his care. Both the Division's and C.V.'s expert explained reunification was unwarranted until C.V. conquered his longstanding substance abuse by abstaining from drugs and alcohol for at least one year.
The potential for damage or injury to C.J.V. arising from the parent-child relationship, which initially required removal, remained present at the time of trial. Even if the trial judge could accept as a fact that C.V. could successfully complete a drug rehabilitation program, reunification remained a distant possibility because of C.V.'s refusal to engage treatment, pursue counseling, or follow through with related services.
We conclude the evidence presented by the Division clearly and convincingly establishes facts necessary to satisfy the first two prongs of the statutory test, showing C.V. was unable to provide his son with a permanent, safe, and stable home at the time of trial. See D.M.H., supra, 161 N.J. at 383 (noting a parent's failure to provide such an environment constitutes a significant harm to a child). Moreover, because of C.V.'s failure to acknowledge he has a substance abuse problem, the child cannot now be placed in his care, and there was no evidence offered to establish when C.V. might timely achieve abstinence. Sadly, these facts show past and recurrent drug abuse, establishing "parental dereliction and irresponsibility," and revealing an "inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit[.]" K.H.O., supra, 161 N.J. at 353. The record offers no evidence that rehabilitation, which has eluded him for years, will become a reality upon which the court could ground future reunification with C.J.V.
We also conclude the Division extended reasonable efforts to help C.V. prevent the termination of parental rights, by providing a myriad of services to aid his correction of the circumstances which led to C.J.V.'s placement outside the home. The record reflects the Division solidly proved the third prong by clear and convincing evidence and we conclude C.V.'s arguments to the contrary lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E).
The final prong, requiring the Division to prove "[t]ermination of parental rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1a(4), often poses the most difficult and requires a delicate balancing of the facts presented. K.H.O., supra, 161 N.J. at 355. As the Supreme Court has stated, under this prong "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." E.P., supra, 196 N.J. at 108. See also K.H.O., supra, 161 N.J. at 355 (noting the question under the fourth prong 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").
Here, crediting the expert's testimony, the trial judge concluded termination would not do more harm than good. We agree.
Children experience harm when parental contact is severed. F.M., supra, 375 N.J. Super. at 264 (citations omitted). However, there is overwhelming evidence C.J.V. is securely bonded to his grandmother, D.D., and severing the bond would cause significant and long-lasting psychological trauma. D.D. demonstrated her nurturing parental ability as well as the capability to satisfactorily mitigate any possible harm following termination of C.V.'s parental rights.
At some point in time, a child's need for permanency outweighs a parent's right to maintain a relationship with his or her child. 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). The issue is not whether C.V. loves his son or even whether they have a bond. In fact, a loving father-son relationship was established. The issue, however, is whether more harm than good will result from the continued delay in C.J.V.'s permanent placement with a loving, capable caregiver who adores him, in favor of an untenable hope C.V. will one day forsake drugs and alcohol to assume the care of his child.
The trial judge credited Dr. LoBiondo's opinion following her "'full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with [C.V.] and [D.D.].'" See F.M., supra, 211 N.J. at 453 (quoting M.M., supra, 189 N.J. at 281). Dr. LoBiondo testified the relationship bonds between C.V. and C.J.V. could not override the child's need for permanency, safety, and stability. Further, C.V. was not capable of fulfilling parenting responsibilities, "and any harm to [C.J.V.] from termination of [C.V.]'s rights will likely be mitigated by the affectionate and caring mutual attachment observed with [D.D.]."
Following our review, we find no basis to interfere with the trial judge's judgment terminating C.V.'s parental rights and awarding the Division guardianship for the purposes of assisting the adoption of C.J.V.
In his second argument, C.V. maintains his due process rights were violated "by the [trial] court's refusal to grant an adjournment and allow [him] to be present at trial." We examine "whether the process afforded adequate protection to the party's interests, and if not, whether additional procedural safeguards were available that would have sufficed." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 466 (App. Div.) (citations omitted), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).
"[P]arental rights are fundamental and constitutionally protected . . . [and] the court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards." A.R.G., supra, 179 N.J. at 286 (citations omitted). See also Santosky, supra, 455 U.S. at 753-54, 102 S. Ct. at 1395, 71 L. Ed. 2d at 606 (1982). "It is well established as a matter of due process principle that procedural requirements are more demanding in parental termination cases than in ordinary civil actions, including other types of cases dealing with parental rights." M.Y.J.P., supra, 360 N.J. Super. at 467 (citations omitted). Adequate notice and a meaningful opportunity to be heard are the cornerstones of due process. A.R.G., supra, 179 N.J. at 286 (citations omitted). However, in termination proceedings, "[t]he requirements of due process do not confer a constitutional right of confrontation or mandate a parent's presence at the trial." M.Y.J.P., supra, 360 N.J. Super. at 467.
The protections needed to ensure due process where governmental action is to be taken depend on a careful balancing of three factors: (1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require. [Id. at 465 (citing the multi-prong test enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976)).]
C.V. received ample notice of the trial dates, thus ensuring him "a meaningful opportunity to be heard." See A.R.G., supra, 179 N.J. at 286. C.V. affirmatively led the Division and his attorney to believe he would be present for the trial. At no point did he raise the potential conflict caused by employment obligations before trial started. Neither an affidavit from C.V. nor documentation from his employer was presented. C.V. did not inform counsel or the court of scheduling problems. Rather, counsel learned of this explanation when he tracked C.V. down after his failure to appear.
Notwithstanding C.V.'s lapse in attending trial, he does not identify any essential evidence that his attorney failed to present, which would have altered the final result. Defense counsel ably cross-examined the Division's witnesses and affirmatively offered expert testimony to advance C.V.'s position. The fact of the matter is C.V. had not relinquished his drug use, making him incapable of caring for his son and defeating the possibility of timely reunification.
We find no abuse of discretion by the trial judge in denying defendant's request to adjourn trial. See Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (citations omitted). Further, that determination did not deprive C.V. of his constitutionally protected rights of due process in this proceeding.