Opinion
DOCKET NO. A-2623-16T4 DOCKET NO. A-2624-16T4
08-08-2018
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.N.M. and L.D., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.L.M., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant N.N.M. (Jennifer M. Kurtz, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant L.D. (Britt J. Salmon-Dhawan, Designated Counsel, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Chanel Van Dyke, Deputy Attorney General, on the briefs). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, and Meredith Alexis Pollock, Deputy Public Defender, on the briefs).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Natali. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0111-16. Joseph E. Krakora, Public Defender, attorney for appellant N.N.M. (Jennifer M. Kurtz, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant L.D. (Britt J. Salmon-Dhawan, Designated Counsel, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Chanel Van Dyke, Deputy Attorney General, on the briefs). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, and Meredith Alexis Pollock, Deputy Public Defender, on the briefs). PER CURIAM
These consolidated appeals return to us after remand proceedings directed by our previous opinion, N.J. Div. of Child Prot. & Permanency v. N.N.M. and L.D., Nos. A-2623-16, A-2624-16 (App. Div. May 7, 2018), where we reversed the Family Part's final judgment of guardianship terminating N.N.M.'s (Nancy) and L.D's (Leonard) parental rights to A.L.M (Amy) and directed the trial judge to make the necessary findings concerning all elements of prong three, N.J.S.A. 30:4C-15.1(a)(3), and specifically whether kinship legal guardianship (KLG) was a viable permanency option.
We use fictitious names for N.N.M., L.D., A.L.M., and the paternal grandmother, for ease of reading and to protect their privacy. --------
On remand, the trial judge conducted a hearing where Lu.D. (Lucy), Amy's paternal grandmother, testified that she wished to adopt Amy. The trial judge also issued a supplemental oral and written decision addressing our concerns regarding prong three.
Defendants collectively argue that the Division of Child Protection and Permanency (Division) did not prove all four prongs of the statutory "best interests of the child" test under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports termination and urges us to affirm the trial judge's determination. After a thorough review of the record, we affirm the order terminating Nancy's and Leonard's parental rights.
Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., 161 N.J. at 347.
The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M. 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining when a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division of Child Protection and Permanency prove by clear and convincing evidence the following four prongs:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;See also A.W., 103 N.J. at 604-11.
(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.
In his two detailed oral decisions and a thorough written opinion, Judge Anthony V. D'Elia found the Division proved, by clear and convincing evidence adduced during the three day trial and subsequent one day remand hearing, all four prongs of N.J.S.A. 30:4C-15.1(a). At trial, the Division relied upon the testimony of a Division fact witness and expert witnesses, Robert Kanen, Psy.D. (Kanen) and Robert Miller, Ph.D. (Miller). Only Leonard testified at trial. Lucy testified at the remand proceedings. We briefly summarize the salient points.
As for the first prong, the judge found that Nancy and Leonard failed to comply with services and each had difficulty dealing with their substance abuse problems and obtaining the necessary parenting skills which prevented them from caring for Amy in a reliable, permanent and consistent manner. This resulted in a withdrawal of parental solicitude and care for an extended period constituting sufficient harm that endangered Amy's health and development. Neither parent had cared for Amy since she was eight months old; at the time of trial she was approximately three years old. The trial judge also relied on the expert opinion of Kanen and Miller that both parents' conduct harmed Amy.
As is often the case, the findings regarding the first prong informed and overlapped the second. See N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). The judge found defendants had failed and would continue to fail to provide a stable and safe home for Amy and that any delay in permanent placement would cause further harm to Amy because both Nancy and Leonard failed to comply with Division services both before and after Amy's birth. Nancy specifically was aware of the risks of not completing all of the necessary services to address her substance abuse issues, including completing outpatient programs. The trial judge concluded that Nancy had an "overriding need . . . to get substances" that took precedence over Amy's best interests. The judge also found that Leonard admitted to drug use through November 2016 and was attending a treatment program solely as a condition of his probation from his most recent arrest; the judge's finding on this point was clearly informed by Leonard's prior history of non-compliance. Finally, the trial judge relied upon the "significant," "reliable" and "credible" uncontroverted testimony of Kanen and Miller that it would be "catastrophic" to remove Amy from Lucy's care.
The judge also found from the evidence regarding the third prong that the Division offered services, among others, to deal with a host of issues confronting Nancy and Leonard, including their substance abuse problems. The judge also concluded that the Division considered alternatives to termination of parental rights. We reject Nancy's and Leonard's arguments in their supplemental submissions that Lucy did not understand the difference between KLG and adoption. And, contrary to Nancy's claims, it was within the scope of the remand for the trial court to conduct additional proceedings. We defer to his conclusion after observing Lucy that she "clearly and unequivocally" wanted to adopt Amy rather than pursue KLG. See N.J. Div. of Youth and Family Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008) (holding that KLG is not available when adoption is feasible or likely). Our review of the record confirms that the judge's conclusions were based on substantial, credible evidence.
In considering the fourth prong, the trial judge concluded that "based upon the credible testimony of the experts it will not do more harm than good to terminate parental rights." The trial judge noted that Amy was removed from Nancy's care when she was eight months old and has been in Lucy's care for approximately two years at the time of trial. Miller testified that Amy bonded with Lucy, whom Amy considers her psychological parent, and that if Amy were separated from Lucy the loss would be "catastrophic." Notably, Nancy failed to attend her bonding evaluation with Miller. The trial judge's findings establish as to both Leonard and Nancy that termination of parental rights will not do more harm than good.
All of the trial judge's findings were supported by evidence the judge found to be clear, convincing, and credible, and are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998). We therefore affirm substantially for the reasons set forth by the trial judge in his well-reasoned and thoughtful oral and written opinions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION