RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4434-17T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
E.L.B.,
Defendant-Appellant,
and
S.E.H.,
Defendant.
IN THE MATTER OF THE GUARDIANSHIP OF L.J.B.,
a Minor.
Submitted February 11, 2019 – Decided February 26, 2019
Before Judges Fasciale, Gooden Brown and Rose. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-0032-18.
Joseph E. Krakora, Public Defender, attorney for appellant (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kimberly S. Dinenberg, Deputy Attorney General, on the brief.)
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Joseph H. Ruiz, Designated Counsel, on the brief).
PER CURIAM
Defendant, E.L.B., 1 appeals from a May 16, 2018 Family Part judgment
terminating his parental rights to his son, L.J.B., born in October 2016. 2
Defendant contends the Division of Child Protection and Permanency (Division)
failed to prove the first three prongs of N.J.S.A. 30:4C-15.1(a) by clear and
1 We use initials to identify the parties and to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12). 2 The judgment also terminated the parental rights of L.J.B.'s biological mother, S.E.H., pursuant to a voluntary identified surrender executed prior to commencement of the guardianship trial. S.E.H. is not a party to this appeal. Defendant's older biological child, G.B., is in the custody of his biological mother and is not a party to this appeal.
A-4434-17T2 2 convincing evidence. The Law Guardian joins the Division in supporting the
judgment.
In a comprehensive oral decision, Judge W. Todd Miller found the
Division satisfied the four-prong test by clear and convincing evidence, and held
that termination was in the child's best interests. In re Guardianship of K.H.O.,
161 N.J. 337, 347-48 (1999). Based on our review of the record and applicable
law, we are satisfied the evidence in favor of the guardianship petition
adequately supports the termination of defendant's parental rights. See N.J. Div.
of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding that a
reviewing court should uphold the factual findings regarding the termination of
parental rights if they are supported by substantial and credible evidence in the
record as a whole). Accordingly, we affirm.
I.
The guardianship trial spanned two successive days in May 2018. The
Division moved into evidence voluminous documents, and presented testimony
from a caseworker and Alan J. Lee, Psy.D., a licensed psychologist. Defendant
did not testify, but moved into evidence two documents: the termination
A-4434-17T2 3 summary of his visitation services program, and a written stipulation that he was
convicted of a burglary offense. 3
The evidence adduced at the trial is set forth at length in Judge Miller's
opinion and need not be repeated in the same level of detail here. Instead, we
incorporate by reference the judge's thorough factual findings and summarize
the most significant evidence to lend context to the judge's legal conclusions.
The Division first became involved with the family when the hospital
reported S.E.H. tested positive for heroin, opiates, and methadone, and had
given birth to L.J.B. the previous day. L.J.B. was born prematurely, weighing
less than four pounds, and tested positive for cocaine and opiates. S.E.H. told
the Division that she and defendant used cocaine and heroin together, but sought
substance abuse treatment after S.E.H. became pregnant. Diagnosed with
neonatal abstinence syndrome, L.J.B. was admitted to the neonatal intensive
care unit (NICU), where he remained for nearly two months.
3 The judgment of conviction was not entered into evidence. At the time of trial, defendant was imprisoned for the burglary conviction, with an anticipated first parole eligibility date of October 9, 2020 and a maximum release date of February 2, 2021.
A-4434-17T2 4 Upon L.J.B.'s release from the hospital, the Division executed a Dodd
removal,4 and was granted custody following a hearing on November 29, 2016.
The Division initially placed L.J.B. in a nonrelative foster home, but within two
months, he was placed with S.E.H.'s aunt, D.M., a registered nurse assigned to
the NICU, and D.M.'s paramour, R.S., a retired firefighter. L.J.B. was later
diagnosed with cerebral palsy and failure to thrive, requiring a special diet and
strict feeding regimen. The child remains in the custody of D.M. and R.S., who
want to adopt him. 5
During the ensuing months, the Division provided a multitude of services
to defendant, including a substance abuse evaluation, continued drug treatment,
a psychological evaluation, and supervised visitation. Defendant's
psychological evaluation indicated he needed parenting skills training classes,
individual psychotherapy, family therapy, and substance abuse treatment.
Despite the Division's continued prompting, defendant refused to seek
employment, pending reunification with L.J.B.
4 A Dodd removal is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011). 5 Pursuant to S.E.H.'s identified surrender either D.M., solely, or D.M. and R.S., jointly, can adopt L.J.B.
A-4434-17T2 5 Although defendant availed himself of services, he was unable to
eliminate the risk of harm to L.J.B. By June 2017 he missed one week of
methadone dosages after he and S.E.H. were arrested and incarcerated for a
domestic violence incident. Thereafter, defendant was discharged for non -
compliance from his drug treatment program and visitation services program;
and arrested and incarcerated for the burglary offense, for which he is currently
imprisoned. In December 2017, the Division filed a complaint for guardianship.
Based on the evidence adduced at the guardianship trial, Judge Miller
aptly analyzed each prong of the best interests test, and gave careful attention to
the importance of permanency and stability for L.J.B. In doing so, the judge
made detailed credibility findings, determining the Division's witness was "very
credible." In particular, the judge credited the expert opinion of Dr. Lee, who
performed defendant's psychological evaluation, and bonding evaluations of
L.J.B. with defendant and with D.M. and R.S. Ultimately, the judge concluded
it was in the best interests of L.J.B. to terminate defendant's parental rights. This
appeal followed.
II.
It is well settled that parents have a fundamental right to raise their
children, and that right is constitutionally protected. N.J. Div. of Youth &
A-4434-17T2 6 Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "[T]erminations should be
granted sparingly and with great caution because they irretrievably impair
imperative constitutionally-protected liberty interests and scores of centuries of
societal family constructs." N.J. Div. of Youth & Family Servs. v. R.G., 217
N.J. 527, 553 (2014). However, a parent's rights are not absolute. Ibid.
"Because of its parens patriae responsibility, the State may terminate parental
rights if the child is at risk of serious physical or emotional harm or when
necessary to protect the child's best interests." Id. at 553-54 (citing N.J. Div. of
Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)).
In order for the court to terminate parental rights, the Division must satisfy
the following four prongs of the "best interests of the child" test 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. 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;
A-4434-17T2 7 (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.
[N.J.S.A. 30:4C-15.1(a)(1)-(4).]
The four prongs are not independent of one another. Rather, they "are
interrelated and overlapping[,] . . . designed to identify and assess what may be
necessary to promote and protect the best interests of the child." N.J. Div. of
Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006).
Parental fitness is the crucial issue. K.H.O., 161 N.J. at 348. Determinations of
parental fitness are very fact sensitive and require specific evidence. Ibid.
Ultimately, "the purpose of termination is always to effectuate the best interests
of the child, not the punishment of the parent." Id. at 350.
Our appellate review of Judge Miller's decision is limited. R.G., 217 N.J.
at 552. We are bound to accept his factual findings, as long as they are
"supported by adequate, substantial, and credible evidence." Ibid. (citing N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Additionally,
we accord his decision particular deference "[b]ecause of the family courts'
special jurisdiction and expertise in family matters," and because the judge was
A-4434-17T2 8 uniquely in a position to evaluate the credibility of the witnesses. Cesare v.
Cesare, 154 N.J. 394, 412-13 (1998). However, we review the trial court's legal
interpretations de novo. R.G., 217 N.J. at 552.
Having reviewed the record in light of those legal standards, we conclude
Judge Miller's factual findings are supported by substantial credible evidence in
the record, and the legal conclusions drawn therefrom are indisputable. See N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
Consequently, we are obligated to defer to his findings. Ibid. We therefore
affirm substantially for the reasons expressed by the judge in his well-reasoned
opinion. We add the following comments, addressing those arguments that are
pertinent to this appeal.
A.
We first consider defendant's overlapping arguments that the judge's
findings were insufficient to establish the first and second prongs of the best
interests test. In particular, defendant contends, as a matter of law, that he did
not cause L.J.B. actual harm. Rather, defendant blames S.E.H.'s substance abuse
and lack of prenatal care for L.J.B.'s resulting disabilities. Defendant further
claims he availed himself of services, even while incarcerated, but Dr. Lee did
not consider the records relating to those services.
A-4434-17T2 9 Defendant's focus on the "actual harm" component of prong one is
misplaced. It is well settled that the Division need not demonstrate actual harm
to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.
Super. 418, 439-40 (App. Div. 2001). The focus under the first prong is not on
any "single or isolated harm," but rather on "the effect of harms arising from the
parent-child relationship over time on the child's health and development."
K.H.O., 161 N.J. at 348 (citing A.W., 103 N.J. at 604-10). The harm may be
established by "a delay in establishing a stable and permanent home." In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
In this case, it is indisputable that L.J.B. sustained actual harm as a direct
result of S.E.H.'s prenatal substance ingestion. See N.J. Dep't of Children &
Families v. A.L., 213 N.J. 1, 22 (2013) (recognizing "proof that a child is
suffering from withdrawal symptoms at birth could establish actual harm").
Indeed, L.J.B. remained in the NICU for fifty-four days following his birth, and
suffers from "severe disabilities."
Of course, defendant did not give birth to L.J.B. Nonetheless, as the judge
aptly recognized, defendant abused drugs alongside S.E.H. during her
pregnancy, and he failed to insure that S.E.H. received prenatal care. Although
the judge credited defendant's undisputed attempts to regain sobriety and avail
A-4434-17T2 10 himself of services, the judge cited defendant's "history of repeating criminal
behavior," his "history of repeating substance abuse[,]" his lack of "any
meaningful history of employment stability[,]" and his lack of "any meaningful
history of housing stability."
The record underscores the judge's findings. For example, despite the
Division's continued prompting, defendant refused to seek employment, pending
reunification with L.J.B. Further, Dr. Lee's evaluation of defendant indicates he
is psychologically less mature and less developed than most adults, with a heightened level of anger and resentment, impulsive and reckless style, and self- centered tendencies. He is prone to ongoing instabilities in his life and situation, with a heightened risk for criminal recidivism and substance abuse relapse. His knowledge of parenting and childrearing are rather limited. His prognosis for significant and lasting changes is poor.
Moreover, L.J.B. has never been in defendant's custody and defendant will
remain incarcerated at least until 2020 or 2021. See In re Adoption of Children
by L.A.S., 134 N.J. 127, 143 (1993) ("performance as a parent before
incarceration" is a factor to consider when determining whether an incarceration
would support termination of parental rights); see also R.G., 217 N.J. at 554-55
(alteration in original) (while incarceration is not dispositive, it is "probative of
whether the parent is incapable of properly caring for . . . or has abandoned the
A-4434-17T2 11 child"). Referencing Dr. Lee's evaluation, the judge recognized defendant will
"need at least [twelve] months of services" after he is released from prison.
Further, L.J.B. requires specialized care, including frequent feedings and
medical appointments. In fact, L.J.B.'s frail condition prevented visitation at the
jail.
Conversely, L.J.B.'s continued placement with D.M. and R.S. is in the
child's best interests. R.S. and D.M. have stable housing and steady sources of
income. D.M. is gainfully employed as a NICU nurse and is therefore qualified
to address the child's special needs. R.S. is a retired firefighter, who receives a
pension and cares for L.J.B. full-time. According to the bonding evaluations
performed by Dr. Lee, L.J.B. would suffer irreparable harm if he were removed
from D.M. and R.S. See F.M., 211 N.J. at 451.
Assuming arguendo that Dr. Lee did not review records regarding services
defendant received in jail, defendant nonetheless failed to rebut Dr. Lee's
testimony that defendant's prognosis was poor and he was unable to safely parent
L.J.B., a special needs child. Rather, the evidence overwhelmingly supports the
judge's conclusion that defendant does not have the "housing," "income," or
"skill set" to care for L.J.B., who will continuously reside with R.S. and D.M.,
with whom he is bonded, for four to five years before defendant is released from
A-4434-17T2 12 prison. Defendant will then need another year of services before he even can be
considered for placement. We agree with the judge that L.J.B.'s permanency
should not hang in the balance unless and until defendant is able to provide the
child with a safe and stable home.
In sum, we discern no error in the judge's determination that the Division
satisfied the first and second prongs of the best interest test by clear and
convincing evidence. The record supports the judge's findings.
B.
Turning to the third prong, defendant claims the Division failed to provide
him with recommended psychotherapy; the court improperly suspended
visitation without conducting a plenary hearing; the record does not indicate the
Division informed D.M. and R.S. of the difference between kinship legal
guardian (KLG) and adoption; and the trial judge failed to consider alternatives
to the termination of his parental rights. We disagree.
Initially, defendant does not dispute that the Division offered him an array
of services. Rather, he claims that because he was not afforded individual
psychotherapy, as recommended by the Division's psychologist, the Division
"derailed his efforts to fully rehabilitate himself," preventing him from gaining
custody of L.J.B. However, "parents always can argue that [the Division] should
A-4434-17T2 13 have done more . . . ." M.M., 189 N.J. at 286. The Division need not be perfect
in its services offered, but only reasonable and acting within the child's best
interests. Ibid.
Instead of referring defendant to individual psychotherapy, the Division
referred him to individual counseling, but defendant failed to complete that
service. As the judge accurately observed, despite the "myriad of services"
provided by the Division, defendant was incarcerated following his burglary
conviction. See R.G. 217 N.J. at 557 (recognizing the Division is "necessarily
impeded by the difficulty and possible futility of providing services to an
incarcerated person").
Secondly, following defendant's incarceration, the court suspended
visitation based on the written recommendations of two of L.J.B.'s treating
physicians. Because there were no genuinely disputed issues concerning the
child's fragile health, we agree with the trial judge that a plenary hearing was
unnecessary to determine whether visitation was appropriate in prison. See P.T.
v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999); see also Hand v. Hand, 391
N.J. Super. 102, 105-06 (App. Div. 2007) (holding that a plenary hearing is not
required in every contested proceeding). Given the circumstances, it was not
unreasonable for the judge to deny defendant's request for visitation while he
A-4434-17T2 14 was incarcerated especially where, as here, Dr. Lee observed L.J.B. has "an
ambivalent and insecure attachment with [defendant]."
We next consider defendant's contention that D.M. and R.S. were not
adequately informed of the difference between KLG and adoption. Our Supreme
Court has recognized that KLG is "not meant to be a substitute for the
permanency of adoption but, rather, to provide as much permanency as possible
when adoption is not feasible or likely and a relative is willing to care for the
child . . . ." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510
(2004). Where adoption is feasible or likely, there is "no need to determine
whether KLG was in the best interest of" the child. N.J. Div. of Youth & Family
Servs. v. T.I., 423 N.J. Super. 127, 137 (App. Div. 2011). We have found
adoption appropriate, rather than KLG, where the child has been in the custody
of the caretaker for quite some time, the caretaker is committed to adoption, and
the differences between KLG and adoption have been explained. See id. at 136.
Here, the record demonstrates that five months after L.J.B. was placed
with his maternal great aunt and her paramour, a Division worker explained to
R.S. the difference between KLG and adoption, provided documents explaining
the differences in greater detail, and indicated "if the case gets transferred to
[the] adoption [unit]," she would again review the distinction with D.M. and
A-4434-17T2 15 R.S. "before they ma[d]e a final decision." Although D.M. was not at home
during the worker's visit with R.S., D.M. clearly stated her intention to adopt
L.J.B. during the bonding evaluation conducted by Dr. Lee one year later, i.e.,
she "wishes . . . to adopt the child if [he is] legally free." Because adoption was
"feasible" and "likely" KLG was not in L.J.B.'s best interests. Id. at 137.
Finally, defendant's claim that the judge failed to properly consider other
alternatives to termination is belied by the record. The Division explored several
options for placing L.J.B. with maternal or paternal relatives. For example, the
Division considered defendant's parents, E.B. and G.B., but they were ruled out
soon after L.J.B. was placed in foster care due to their prior Division history,
domestic violence, allegations of sexual abuse by G.B., and insufficient living
space in their one-bedroom apartment.
Nonetheless, prior to the start of the guardianship trial, Judge Miller
conducted a custody hearing regarding a complaint filed by E.B. nearly one year
after her initial application for placement was denied. E.B. testified that she had
physical disabilities that prevented her from lifting anything more than twenty-
five pounds, and G.B. also was disabled. She acknowledged she was unfamiliar
with L.J.B.'s disabilities and special needs. Before defendant was incarcerated,
A-4434-17T2 16 E.B. saw L.J.B. a few times per week, but she had not seen the child in nearly
one year. If she were awarded custody, she would move to a larger apartment.
At the conclusion of E.B.'s testimony, the judge denied E.B.'s petition,
citing her limited relationship with the child, and her unfamiliarity with L.J.B.'s
"severe" health issues. The judge also noted L.J.B. had been in the care of D.M.,
a pediatric nurse, for seventeen months. Accordingly, the judge determined
uprooting L.J.B. from D.M.'s care to E.B.'s care would not be in the best interests
of the child.
Further, S.E.H.'s grandparents were considered together, and her
grandmother was again considered separately after her grandfather moved out
of their trailer home. Ultimately S.E.H.'s grandmother was ruled out because of
her "finances and the state of her house." The Division also considered, but
ruled out, S.E.H.'s cousin because her paramour had pending theft charges.
We are therefore satisfied that the record supports the judge's
determination that the Division satisfied the third prong of the best interests test.
Defendant's remaining contentions, to the extent they have not been
addressed, are without sufficient merit to warrant further discussion in our
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4434-17T2 17