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New Jersey Division of Youth and Family Services v. M.K.

Superior Court of New Jersey, Appellate Division

May 30, 2013

M.K., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.K., Minor.


Submitted May 21, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12—53-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kourtney J.A. Knop, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.K. (Katherine J. Bierwas, Designated Counsel, on the brief).

Before Judges Reisner and Hoffman.


Defendant M.K. (Mark or defendant) appeals from a May 17, 2012 order terminating his parental rights to his child A.K. (Anna).[1] We affirm, substantially for the reasons stated by Judge Robert Figarotta in his oral opinion issued on May 17, 2012.


This was the most pertinent trial evidence. Anna was born on February 17, 2010. Due to her mother Sally's substance abuse, Anna was born with cocaine and Oxycontin in her system and was placed in Mark's custody shortly after her birth. Unfortunately, Mark tested positive for cocaine on April 7, 2010.[2] As a result, on April 8, 2010, the Division of Youth and Family Services (Division)[3] removed Anna from his custody and placed her with the maternal grandparents, where she has lived ever since. The grandparents have become her psychological parents and are prepared to adopt her.

Although they visited Anna on a regular basis, both parents resisted obtaining drug treatment until the fall of 2011. In November 2011, Mark began participating in a short-term drug treatment program at the New Hope Foundation. He completed that program, went to another related program called Phillip's House, and then continued his treatment at Integrity House, a long-term treatment facility, where he was still residing at the time the guardianship trial began on April 30, 2012. By that time, Anna had been living with her grandparents for two years. Sally continued to struggle with her drug addiction, and on the first day of the guardianship trial, she made an identified surrender of her parental rights in favor of her parents.

In its case against Mark, the State presented testimony from Dr. Karen Wells, who had evaluated him on October 29, 2011. She opined that he was not currently able to care for Anna, due to his history of multiple attempts at drug treatment, with multiple relapses, his bipolar disorder, for which he was not then taking medication, and his expressed discomfort with seeking support from others in a social network. Given Sally's "poor prognosis, " Dr. Wells also expressed concern about Mark's ability to maintain his sobriety if he resumed his relationship with Sally after he left Integrity House.[4]

Based on her evaluation of the child's bond with Mark and with her grandparents, Dr. Wells opined that the child's "primary psychological attachment is to her grandparents." According to Dr. Wells, although Anna has a bond with Mark, her "primary father figure . . . is her grandfather." She testified that the grandparents could mitigate any harm that might result to the child if Mark's parental rights were terminated. She further opined that it was not in the child's best interest to leave her in a state of "limbo" while Mark made further efforts to become a fit parent.

In his testimony on May 3, 2012, Mark stated that he had a history of depression, alcohol and cocaine abuse, and an addiction to Oxycodone. His drug and alcohol use dated back to when he was about eighteen years old; he was thirty–one at the time of the trial. Mark testified that he had participated in drug treatment but had relapsed a number of times, most recently in June of 2011. However, he testified that while living at Integrity House, he was succeeding in remaining drug free and was taking medication for his depression and bipolar condition. He expected to be able to leave Integrity House in three to six months.

Mark testified that he had known Sally his "whole life" and that their fathers were "close friends." He had also known the maternal grandparents since he was a child and "always" had a good relationship with them. When Anna was placed with the grandparents, he regularly visited her at their house. At some point, he stopped visiting at their house "because [Sally] wasn't getting along with her parents" and it became "uncomfortable for [him]" to visit at her parents' house. Therefore, the Division arranged for him to visit with Anna at a different location. He testified that if he regained custody of Anna, he would permit the grandparents to visit with her.

The defense also presented expert testimony from Dr. Edward J. Dougherty, a psychologist, who evaluated Mark on April 3, and performed a bonding assessment on May 10, 2012. He did not do a bonding evaluation of Anna with her grandparents. Dr. Dougherty testified that Mark had Attention Deficit/Hyperactivity Disorder (ADHD) and depression. Dr. Dougherty explained that with ADHD "you have the problems of impulsivity, inattention and hyperactivity." He also opined that using Zoloft, which Mark had taken in the past to treat ADHD, can produce symptoms that mimic bipolar disorder. He therefore was not certain that Mark actually had bipolar disorder.

While Dr. Dougherty believed that Mark had the ability to control his addiction, Mark admitted to him that he was "not ready yet" to have custody of Anna, because he had not completed his treatment program. Dr. Dougherty opined that it was too early to decide whether Mark's parental rights should be terminated, because he was still in treatment and appeared to be succeeding. The doctor opined that the issue should be revisited in August 2012, but admitted that "there's a lot that has to happen between now and August." He testified that Mark could ameliorate any harm caused by removing Anna from her grandparents' custody, but only if he remained sober. In answer to the judge's question, Dr. Dougherty confirmed that Mark was not ready to care for Anna because he was not yet "stable enough" in the sense that he did not have housing, a job, or a Narcotics Anonymous sponsor, and had not completed his drug treatment program. He described Mark as "[a] work in progress."

In his oral opinion, Judge Figarotta reviewed the four prongs of the best interests test, N.J.S.A. 30:4C-15.1a, and determined that termination of defendant's parental rights was in Anna's best interests. Considering the first prong, he found that defendant caused the child harm initially by using illegal drugs. On the second prong, the judge found that the experts on both sides agreed that defendant still was not ready to care for the child. The judge found that in addition to defendant's mental health issues, "the substance abuse problems are what started this particular case and they continue today some 26 months later." He found that defendant was still "not out of the program dealing with life on his own." The judge also considered defendant's very long history of drug abuse and relapses, and the fact that the child had been living away from her parents due to defendant's drug use and its consequences. The judge was satisfied that the Division had provided defendant with sufficient services to satisfy the third prong.

The judge credited Dr. Wells' opinion that the child would be harmed by a continuing lack of a permanent family situation. And he did not find that defendant was likely to become a fit parent in the foreseeable future.

[Mark] has no permanent home. He has no permanent job. His dealing with his substance abuse and mental health questions are so voluminous as to give this court [a] lack of confidence in their fulfillment in the short term, in the foreseeable future.
This child has been out of placement for 25 months, 26 months. Any further delay, any further continuation of the current situation will continue to perpetuate harm to the child. . . Now we'd all like to see her be with her parents; it can't happen. It hasn't happened.

The judge found that the child had a bond, but not a parent-child bond, with defendant. The judge found that, "[s]he's comfortable with him. He's a nice guy. . . . But she turns to [the grandparents] for her continuing needs." The judge further found that the grandparents could ameliorate any harm that would result from "severing the parental relationship between the child and [defendant]." The judge ordered termination of parental rights. He denied Mark's request for unsupervised visitation pending appeal, but stated that supervised visitation would continue as it had all along.


In striking a balance between a parent's constitutional rights and a child's fundamental needs, courts employ the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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-15.1a.]

In their application, the four factors cited above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

In reviewing Judge Figarotta's decision applying the best interests test, we have a very limited role. We are not deciding this case ab initio. Rather, we must defer to the trial judge's factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (citation omitted). And we owe special deference to the trial judge's credibility determinations and to his expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

Having reviewed the record in light of those standards, we decline to second-guess Judge Figarotta's decision that terminating defendant's parental rights is in the child's best interests. In particular, we find no basis to disturb his factual findings or his decision to give more weight to the opinions of Dr. Wells than to the recommendations of Dr. Dougherty. See In re Guardianship of D.M.H., 161 N.J. 365, 382-83 (1999). The judge's legal conclusions follow logically from his factual findings, which are supported by sufficient credible evidence. R. 2:11-3(e)(1)(A).

Mark and the Law Guardian argue that he has a bond with the child, he is currently addressing his substance abuse issues, and he should be given more time to try to become a fit parent before a decision is made whether to terminate his parental rights. We are not persuaded that Judge Figarotta's decision was in error.

We recognize that Mark loves Anna and wants to be able to care for her as her parent However even after the passage of more than two years he is clearly unable to do so and neither expert testified to more than an aspirational hope that he could achieve that goal in the future The law does not require the child to remain in limbo indefinitely in the hope that defendant will eventually get his life together to the point where he can act as her parent To the contrary the law favors giving the child a stable and permanent family placement See NJSA 30:4C-15(d); In re Guardianship of KHO 161 N.J. 337 357-58 (1999) The child is living with grandparents who are ready to adopt her and that prospect is in her best interests[5]

Defendant's remaining appellate arguments are without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(1)(E)


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