DCPP VS. J.H. AND S.D., IN THE MATTER OF THE GUARDIANSHIP OF J.L.H., JR. (FG-03-0065-17, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 2, 2018
• Docket: A-2045-17T4
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2045-17T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.H.,

Defendant-Appellant,

and

S.D.,

Defendant. _________________________________

IN THE MATTER OF THE GUARDIANSHIP OF J.L.H., Jr.,

a Minor. _________________________________

Submitted October 9, 2018 – Decided November 2, 2018

Before Judges Messano and Gooden Brown. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-0065-17.

Joseph E. Krakora, Public Defender, attorney for appellant (James D. O'Kelly, Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant J.H.1 appeals from the December 21, 2017 judgment of

guardianship that terminated his parental rights to his son, J.L.H., Jr., born May

2016. Defendant's wife, S.D., J.L.H., Jr.'s mother, gave a voluntary identified

surrender of her parental rights to her son's current non-relative caregiver, and

is not a party to this appeal. Defendant contends that plaintiff New Jersey

Division of Child Protection and Permanency (Division) failed to prove prong

three of the best interests standard embodied in N.J.S.A. 30:4C-15.1(a) by clear

and convincing evidence. The Law Guardian supported termination before the

1 Pursuant to Rule 1:38-3(d)(12), we use initials to protect the confidentiality of the participants in these proceedings. A-2045-17T4 2 trial court and, on appeal, joins the Division in urging us to affirm. Having

considered the parties' arguments in light of the record and applicable legal

standards, we affirm.

N.J.S.A. 30:4C-15.1(a)(1) to -15.1(a)(4) requires the Division to petition

for termination of parental rights on the grounds of the "best interests of the

child" 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 [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.

On May 31, 2017, the Division filed a verified complaint to terminate

defendant's parental rights and award the Division guardianship of J.L.H., Jr.

A-2045-17T4 3 We will not recite in detail the circumstances that led to the filing of the

guardianship complaint, which began with the emergency removal of J.L.H., Jr.

shortly after he was born suffering from methadone exposure 2 while both S.D.

and defendant were incarcerated at the Atlantic and Burlington County jails,

respectively. As a result, the Division was granted care, custody, and

supervision of J.L.H., Jr., pursuant to N.J.S.A. 9:6-8.21 and 30:4C-12. In order

to arrange placement, the Division contacted defendant's mother, who ultimately

adopted defendant's other two children, then one- and two-years-old, but the

paternal grandmother (PGM) indicated that she did not have space and was

unable to care for a newborn in addition to defendant's other two children. The

Division also contacted defendant's father and brother. Although the paternal

grandfather (PGF) expressed an interest in being the caregiver, he had recently

relocated to Florida with defendant's brother and his family, thus necessitating

processing the placement under the Interstate Compact on the Placement of

Children (ICPC). N.J.S.A. 9:23-5.3 Additionally, the Division contacted F.F.,

2 Hospital records revealed that J.L.H., Jr.'s meconium, or first stool, tested positive for methadone and marijuana. 3 The ICPC requires New Jersey to notify the out-of-state child welfare authorities if children are removed from New Jersey and placed in an out -of- state home so that they can "be the eyes and ears of [the Division] in that

A-2045-17T4 4 a paternal aunt who had adopted S.D.'s third child, born in 2008 from a different

relationship.4 F.F. expressed interest in being J.L.H., Jr.'s caregiver, but needed

a few days to speak to her husband before she could commit. However, when

presented with F.F. as a placement option, defendant expressly rejected her.

Given the unavailability of family members for an immediate placement, when

J.L.H., Jr. was released from the hospital on June 7, 2016, the Division placed

him in a non-relative resource home. He was placed in his current resource

home on October 18, 2016, and has remained there since.

Judge Mark P. Tarantino conducted the guardianship trial on December

21, 2017. At the trial, Division caseworker Sidney Winters testified about the

history of the case and the Division's involvement with defendant, detailing his

history of substance abuse, mental health issues, incarcerations, and unstable

housing. She also recounted the Division's efforts to provide services to help

defendant correct these circumstances and assess placement options. Division

expert Brian S. Eig, Psy.D., testified about the psychological evaluation he

conducted of defendant, and the bonding evaluations he conducted between

particular state." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 468 (App. Div. 2008) (alteration in original). 4 Defendant also had a third child from a different relationship, but that child was not in defendant's care. A-2045-17T4 5 J.L.H., Jr., defendant, and the resource parent. Defendant, a veteran who had

previously been deployed to Afghanistan, testified on his own behalf, objecting

to the termination of his parental rights. In the alternative, defendant expressed

a preference for J.L.H., Jr. to be adopted by a family member. In addition,

numerous documentary exhibits were admitted into evidence.

We incorporate by reference the factual findings and legal conclusions in

Judge Tarantino's December 21, 2017 oral opinion following the guardianship

trial and only recite Judge Tarantino's key findings supporting his decision.

Preliminarily, Judge Tarantino found Dr. Eig "to be a credible witness," and his

uncontroverted testimony "fair" and "very believable." Likewise, the judge

found Winters to be a credible witness, and described her uncontroverted

testimony as "one of the best witness testimonies that the [c]ourt has seen in

many years." In contrast, the judge found that defendant "embellish[ed] when

he testified" and "was not a credible witness in the sense that he was answering

questions the way he wanted to answer them" and "actually bolstered the

[Division's] case as opposed to" his own. In interpreting defendant's overall

testimony, the judge determined that "the best plan" offered by defendant for

J.L.H., Jr.'s care would be to "pass [J.L.H., Jr.] off, as he did with the other two

A-2045-17T4 6 children, to his mother, and then . . . be in a sense the big brother," rather than a

father.

The judge carefully reviewed the services provided by the Division,

including certified alcohol and drug counselor (CADC) assessments, substance

abuse treatment programs, psychological evaluations, random urine screens,

visitations, and transportation. The judge determined that other than "one

service that he completed," defendant "has not engaged in any services."

According to the judge, defendant merely provided "excuses," which, even if

believed, demonstrated defendant's "self-destructive" actions and were not

indicative of "someone who [was] ready to be serious about being a parent and

having reunification with a young child."

The judge considered Winters' testimony regarding the Division's

assessment of family members for J.L.H., Jr.'s placement. According to

Winters, in a June 14, 2016 rule out letter, the Division notified the PGM that

J.L.H., Jr. would not be placed in her home based on her anticipated adoption of

defendant's other two children,5 and the fact that she did "not have the space [in

her home for J.L.H., Jr.] at th[e] time." The letter notified the PGM of her right

5 At the time, the PGM had adopted one child and was in the process of adopting the other. A-2045-17T4 7 to "request a review of the decision" if she disagreed, and that "[i]f there [was]

a change in [her] circumstances and [she] would like to be reconsidered as a

potential caregiver for [J.L.H., Jr.]," she should contact the Division. The letter

also advised of "the possibility that termination of parental rights may occur if

the child[] remain[ed] in the Division's care for more than six months, and that

the child[] may be placed for adoption." The PGM neither requested a review

nor contacted the Division regarding a change in circumstances. As to the PGF,

on January 17, 2017, the ICPC placement was denied because the PGF "had a

change of heart" and "withdrew from the placement process." In a May 3, 2017

rule out letter similar to the one provided to the PGM, the Division notified the

PGF of the decision and advised him of his rights. The PGF neither requested

a review nor contacted the Division regarding a change in circumstances.

The judge discussed the circumstances of J.L.H., Jr.'s birth, and recounted

the progress made while placed with the resource parent, who was committed to

adoption rather than the kinship legal guardianship (KLG) option explained to

her by Winters. Acknowledging J.L.H., Jr.'s "special needs," and "neurological

concerns," the judge observed that J.L.H., Jr. "has flourished and has done well"

in the resource parent's care. The judge noted that defendant's preference for

J.L.H., Jr. to be in the care of a family member failed to "account [for] the fact

A-2045-17T4 8 that the resource parent has provided excellent care and nurturing to the child

thus far."

In considering Dr. Eig's psychological evaluation of defendant, the judge

noted that Dr. Eig confirmed defendant's "history of substance abuse, including

alcohol, marijuana, heroin[,] and cocaine." The judge recounted Dr. Eig's

"diagnostic impressions" that defendant was "bipolar," and "suffer[ed] from

[post-traumatic stress disorder,]" "attention deficit disorder, hyperactivity

disorder, antisocial personality, and . . . stimulation disorders from opioids and

cocaine." According to the judge, "Dr. Eig did not support [defendant]

continuing to be a parent," and "noted that [defendant's] parenting fitness was

not likely to improve, even if [defendant] were to engage in some of the

[recommended] services."

As to the bonding evaluation with defendant and J.L.H., Jr., the judge

accepted Dr. Eig's testimony that although defendant "did have a positive

interaction with the child," there was no "significant psychological attachment

or psychological bond," and "it [was] unlikely that [J.L.H., Jr.] view[ed]

[defendant] as his psychological parent." Accordingly, "[J.L.H., Jr.] would be

at [a] relatively low risk of suffering severe and enduring psychological or

emotional harm if his relationship with [defendant] was permanently ended."

A-2045-17T4 9 The judge contrasted Dr. Eig's "bonding evaluation with the resource

parent, noting positive interactions with the child, that the child sought support

and reassurance from the resource parent, and had a secure attachment to the

resource parent." Accordingly, Dr. Eig concluded that "if the bond or the

relationship between the resource parent and [J.L.H., Jr. was] terminated, there

would be a high risk for psychological and emotional harm to" J.L.H., Jr.

Further, according to Dr. Eig, "the [resource] parent would be able to ameliorate

any harm to the child if [defendant's] parental rights were terminated."

Describing the evidence presented by the Division as "extremely

compelling and convincing, with really no inconsistencies," and citing N.J. Div.

of Youth & Family Servs. v. A.R., 405 N.J. Super. 418 (App. Div. 2009), and

In re Guardianship of K.H.O., 161 N.J. 337, 347-63 (1999), the judge concluded

the Division had proven, "by clear and convincing evidence," all four prongs of

the "best interests" test codified at N.J.S.A. 30:4C-15.1(a).

On appeal, defendant only challenges the judge's findings with respect to

the third prong of the statute, and does not contest the judge's adverse findings

on the remaining prongs. We thus confine our analysis to the third prong,

although we note parenthetically our recognition that the remaining prongs were

amply proven by the Division.

A-2045-17T4 10 Regarding prong three, the judge was "more th[a]n satisfied" that "the

Division . . . made consistent, thorough, professional, diligent efforts to provide

services to correct the circumstances of this removal." The judge "considered

alternatives to termination of parental rights," but was "satisfied" that "[t]here

really [were] no viable alternatives." According to the judge, the resource pa rent

was advised of KLG, but adoption "seem[ed] to make the most sense from the

[c]ourt's view." Further,

[t]he Division, . . . right off the bat, did investigate and let two different grandparents know that they could have placement, and for various reasons[,] they did not achieve placement, but . . . this situation has been known to these grandparents for a year-and-a-half, right from the beginning of the case. And so . . . [t]here's only really one alternative left, which is termination of parental rights.

The judge entered a memorializing order, and this appeal followed.

Our scope of review on appeals from orders terminating parental rights is

limited. In such cases, we will generally uphold the trial court's findings, so

long as they are supported by "adequate, substantial, and credible evidence."

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). Indeed,

we must give substantial deference to the family court judge's special expertise

and opportunity to have observed the witnesses firsthand and evaluate their

credibility. Id. at 552-53. Thus, a termination decision should only be reversed

A-2045-17T4 11 or altered on appeal if the trial court's findings were "so wholly unsupportable

as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P.,

180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440,

472 (2002)). Even where the parents allege "error in the trial judge's evaluation

of the underlying facts and the implications to be drawn therefrom," deference

must be afforded unless the judge "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) (first quoting In re Guardianship of J.T., 269 N.J. Super. 172, 189

(App. Div. 1993); and then quoting C.B. Snyder Realty, Inc. v. BMW of N. Am.

Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).

Guided by these standards, we conclude that Judge Tarantino's factual

findings are amply supported by the credible evidence in the record, and his

legal conclusions are unassailable. Defendant urges us to reject the judge's

determination that "alternatives to termination of [his] parental rights" were

explored "when scant evaluation of possible placements was performed."

According to defendant, the Division failed to satisfy its "statutory burden to

use its best efforts to facilitate [J.L.H., Jr.'s] placement" with the PGM, or F.F.

Without question, the Division is not permitted "to embark on a course set for

termination of parental rights . . . without at least first exploring available

A-2045-17T4 12 relative placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.

Super. 568, 580 (App. Div. 2011). To that end, "[t]he Division must perform a

reasonable investigation of such relatives that is fair, but also sensitive to the

passage of time[,] and the child's critical need for finality and permanency." N.J.

Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 87 (App. Div. 2013).

While "there is no presumption in favor of placement with relatives,"

K.L.W., 419 N.J. Super. at 580, after "complet[ing] an assessment of each

interested relative's ability to provide the care and support, including placement,

required by the child," id. at 578 (quoting N.J.S.A. 30:4C-12.1), if the Division

"determines that the relative is unwilling or unable to assume the care of the

child, the [Division] shall not be required to re-evaluate the relative." N.J.S.A.

30:4C-12.1(b). The Division shall however inform the relative in writing of:

(1) the reasons for the department's determination;

(2) the responsibility of the relative to inform the department if there is a change in the circumstances upon which the determination was made;

(3) the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months; and

(4) the right to seek review by the department of such determination.

[Ibid.]

A-2045-17T4 13 Here, we are convinced that the Division satisfied its statutory obligation

and the judge correctly concluded that prong three of the best interests standard

was met by clear and convincing evidence. The PGM was properly assessed

and ruled out without appeal, and defendant objected to F.F., who, in any event,

was not a "relative" the Division was obligated to investigate under the

applicable regulations. See N.J.A.C. 10:120A-1.3 (defining "relative" for

purposes of N.J.S.A. 30:4C-12.1, and limiting some relationships "to those

having a history of being active in planning for the child's future").

"It is not our place to second-guess or substitute our judgment for that of

the family court, provided that the record contains substantial and credible

evidence to support the decision to terminate parental rights." N.J. Div. of

Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). Here, the judge

reviewed the evidence presented at trial, made detailed findings as to each prong

of N.J.S.A. 30:4C-15.1(a), and concluded that the Division met, by clear and

convincing evidence, all of the legal requirements for a judgment of

guardianship. The judge's opinion tracks the statutory requirements of N.J.S.A.

30:4C-15.1(a) and comports with applicable case law. See, e.g., F.M., 211 N.J.

at 447-54; N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103-07

(2008); K.H.O., 161 N.J. at 347-63; In re Guardianship of D.M.H., 161 N.J. 365,

A-2045-17T4 14 375-93 (1999); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-

11 (1986). We thus affirm substantially for the reasons Judge Tarantino

expressed in his comprehensive and well-reasoned oral opinion.

Affirmed.

A-2045-17T4 15