NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF THE GUARDIANSHIP OF

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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. M.P., Defendant–Appellant. IN RE: THE GUARDIANSHIP OF J.S., a minor.

DOCKET NO. A–0236–13T2

Decided: April 11, 2014

Before Judges Fisher, Espinosa and O'Connor. Joseph E. Krakora, Public Defender, attorney for appellant (Louis W. Skinner, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel;  Paul V. Buonaguro, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Margo E.K. Hirsch, Designated Counsel, on the brief).

Defendant M.P. appeals a judgment terminating her parental rights to her fifth child, J.S., born November 5, 2010.1  The biological father is unknown.   M.P. argues that the Division of Child Protection and Permanency (the Division) failed to establish the first, second, and fourth prongs of N.J.S.A. 30:4C–15.1(a) by clear and convincing evidence.   We disagree, and affirm.

Both M.P. and J.S. tested positive for cocaine at the time of the baby's birth.   M.P. admitted she used illicit drugs during the pregnancy and had a history of substance abuse.   On November 22, 2010, the court awarded the Division care, custody and supervision of J.S., who went directly from the hospital to foster care and has never been in M.P.'s custody.   On December 7, 2010, J.S. was placed with a family friend, who wishes to adopt him.   It was not disputed the child is thriving under the foster mother's care.

During a substance abuse evaluation conducted within weeks of the child's birth, M.P. reported she smoked marijuana daily from age nine “throughout her teens,” and drank alcohol daily from age thirteen to twenty-one.   Currently forty-seven years of age, she smoked crack-cocaine from age twenty-three to forty.   Although over the years she engaged in substance abuse treatment, she always relapsed.   When pregnant with J.S., she smoked marijuana “almost” daily until the fourth month of pregnancy, at which time she cut back to smoking marijuana a couple of times a week.   She also snorted “powder cocaine” once or twice during the pregnancy.

Over the course of the litigation, the Division referred M.P. to six substance abuse treatment programs.   Although she enrolled in each program, she was eventually discharged from each program due to non-compliance.   M.P. was also afforded supervised visitation, but between August 22, 2012 and the date of the trial, July 29, 2013, she visited the child only one time.

Following the trial, at which M.P. neither appeared nor introduced any evidence, the trial court found the Division met all four prongs of N.J.S.A. 30:4C–15.1(a).   On appeal, M.P. raises the following issues:

POINT I:  THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.S.' SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE CONTINUATION OF THE PARENTAL RELATIONSHIP.

a. DRUG USE DURING PREGNANCY IS NOT ACTUAL HARM TO THE CHILD IF THERE IS NO HARM AFTER BIRTH.

POINT II:  THE DIVISION HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.P. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING [J.S.] OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME.

POINT III:  THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD.

a. BONDING EVALUATIONS WERE NOT PERFORMED.

Parents have a constitutionally protected right to the care, custody and control of their children.  Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394–95, 71 L. Ed.2d 599, 606 (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 ․,’ ‘far more precious ․ than property rights.’ ”  Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L. Ed.2d 551, 558 (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., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute.  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.  In re Guardianship of J.C., 129 N.J. 1, 10 (1992).   To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests.  N.J.S.A. 30:4C–15.1(a) requires that the Division 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;

(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

․;

(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.

[See also A.W., supra, 103 N.J. at 604–11.]

The Division need not demonstrate actual harm in order to satisfy the first prong.  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).  “Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.”  In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).   The test is whether the child's safety, health or development will be endangered in the future and whether the parent is or will be able to eliminate the harm.   A.G., supra, 344 N.J.Super. at 440.   The second prong focuses on whether the parent is able to remove the danger facing the child.  Ibid. The inquiry is whether the parent is unable to provide a stable and protective home for the child.  Ibid.;  N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).

The first and second prongs are satisfied where the parent engages in continued or recurrent drug use that the parent cannot or is unwilling to overcome.  “[P]arents dabbling with addictive substances must accept the mandate to eliminate all substance abuse.   Such unabated behavior initiates the foster care placement of their children and causes continuing harm by depriving their children of necessary stability and permanency.”  N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.Super. 228, 245–46 (App.Div.2010), certif. denied, 205 N.J. 519 (2011);  see also K.H.O., supra, 161 N.J. at 353.

There was clear and convincing evidence J.S.'s safety, health or development would be endangered if he were to be placed under M.P.'s care.   M.P. has been struggling with substance abuse for thirty-eight of her forty-seven years.   Just since J.S. was born, she has tried but failed to complete six different treatment programs.   She is unable to master her addictions and remain drug free.   The Division introduced ample evidence to satisfy the first and second prongs of N.J.S.A. 30:4C–15.1(a).

M.P. argues the Division failed to meet the first prong because there was no proof J.S. was harmed by her use of drugs while she was pregnant with him.   See New Jersey Dept. of Children and Families, Div. of Youth and Family Services v. A.L., 213 N.J. 1 (2013).   The main thrust of the Division's case, however, was that termination of parental rights was warranted because of M.P.'s long-standing, intractable drug problem and her inability to surmount her addictions, not that J.S. was injured from M.P.'s prenatal drug use.   The Division did introduce evidence that M.P. used drugs during the pregnancy, but the clear purpose was to show how recently the mother had used drugs, that there had been no abatement of her long-term abuse of substances.

M.P. does not contest that the third prong of N.J.S.A. 30:4C–15.1(a) was met.   The fourth prong focuses on whether “[t]ermination of parental rights will not do more harm than good.”  N.J.S.A. 30:4C–15.1(a).  “The question to be addressed

․ is whether ․ the child will suffer a greater harm from the termination of ties with [his] natural parent[ ] than from the permanent disruption of [his] relationship with [his] foster parent[ ].”  K.H.O., supra, 161 N.J. at 355.   Because of the inherent risk to children stemming from termination of parental rights, “the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties.”  Ibid. Rather, the court must consider the comparative harm and must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents.   Ibid. (citing J.C., supra, 129 N.J. at 25).   In limited and rare circumstances, however, a comparative bonding analysis may not be required.   N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 440 (App.Div.2009).

J.S. has never been in M.P.'s custody;  during the eleven months preceding the trial, M.P. had only one visit with the child.   J.S., now three years of age, has been in his foster mother's home since he was an infant.   The caseworker testified the child is doing well under her care, and that the foster mother and the child have a close and affectionate relationship.   Defendant has not overcome her dependence on drugs and is not able to provide J.S. with a stable and permanent home.   This case presents the rare circumstance where a comparative bonding analysis would not have been useful.  A.R., supra, 405 N.J.Super. at 440.   The evidence was clear and convincing that despite the absence of bonding evaluations, the termination of M.P.'s parental rights to J.S. will not cause him more harm than good and is in his best interests.

Affirmed.

FOOTNOTES

1.  FN1. Three of defendant's children are over the age of twenty-one years.   The fourth child, age 17, is in the custody of a maternal aunt.

PER CURIAM

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