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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–4231–12T3

    Decided: March 26, 2014

Before Judges Lihotz and Hoffman.Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Christina G. Ramirez, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor V.R.L. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

Defendant T.A., the mother of V.R.L., appeals from a judgment terminating her parental rights and granting guardianship to the Division of Child Protection and Permanency (Division) to secure six-year-old V.R.L.'s adoption.1  T.A. challenges the sufficiency of the Division's evidence, arguing the proofs were neither clear nor convincing.   We disagree and affirm.

The law guiding our review is well-established.   Parental rights, while constitutionally protected, are not absolute.  In re Adoption of a Child by W.P. & M.P., 308 N.J.Super. 376, 382 (App.Div.l998), vacated on other grounds, 163 N.J. 158 (2000).   The government “is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.”  Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L. Ed.2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L. Ed.2d 15, 33 (1972)).   Accordingly, the State, as parens patriae, may sever the parent-child relationship when necessary to protect a child from serious physical and emotional injury.  W.P. & M.P., supra, 308 N.J.Super. at 382.

When a child's biological parents resist termination of parental rights, it is the court's function to decide whether the parents can raise the child without causing further harm.  In re Guardianship of J.C., 129 N.J. 1, 10 (1992).   The cornerstone of this inquiry is whether parents can “cease causing their child harm” and become fit to assume the parental role within time to meet the child's needs.  Ibid. “The analysis ․ entails strict standards to protect the statutory and constitutional rights of the natural parents.”  Ibid.

A trial court's examination in a guardianship matter focuses upon what course serves the “best interests” of the child.  In re Guardianship of K.H.O., 161 N.J. 337, 343 (1999).   Our Legislature requires satisfaction of the “best interests of the child” test, codified at N.J.S.A. 30:4C–15.1(a), by clear and convincing evidence before termination of parental rights can occur.   See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) (“The correct standard is ‘clear and convincing’ proof.”).   Specifically, the four-prong test set forth in N.J.S.A. 30:4C–15.1(a) requires the Division to prove:

(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.

These factors are neither discrete nor separate;  rather, they “ ‘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. E.P., 196 N.J. 88, 103 (2008) (quoting K.H.O., supra, 161 N.J. at 348).   Whether the State has satisfied each prong by clear and convincing evidence is an “extremely fact sensitive” inquiry, which must be based on “particularized evidence that addresses the specific circumstances of the individual case.”   N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App.Div.2006) (internal quotation marks and citations omitted).

Following a five-day trial, Judge Mirtha Ospina issued a written opinion assessing the trial evidence and concluding the Division's evidence clearly and convincingly satisfied the statutory prongs.   Judge Ospina entered a judgment terminating T.A.'s parental rights and granting the Division guardianship.

On appeal, T.A. challenges the sufficiency of the evidence and argues the trial court's evaluation of the facts and the implications drawn from those facts were “manifestly unsupported.”   Specifically, T.A. argues the court's findings of fact did not prove she engaged in substance abuse or domestic violence in V.R.L.'s presence and guardianship was inappropriate in light of her demonstrated progress in in-patient therapy.

We have considered each of T.A.'s arguments in light of the record and the applicable law.   We reject her assertions as without merit.  R. 2:11–3(e)(1)(E).   We add these brief comments.

Although T.A. commenced participation in programs to end her drug abuse, as ordered by the criminal court as part of a drug court sentence, all experts, even those she presented, confirmed she has a long way to go before she can demonstrate her ability to permanently achieve sobriety.   T.A. had started using marijuana while a teenager, progressed to cocaine and moved on to heroin addiction in March 2009, approximately one year after V.R.L.'s birth.   Her long-standing drug use had led to multiple criminal incarcerations, residential and relationship instability, domestic violence, and the abrogation of the most basic parental responsibilities.

T.A.'s suggestion that she could be in a position to fully parent V.R.L. in six months woefully mischaracterizes the evidence.   In fact, her expert Dr. Kenneth I. McNiel stated the “rule of thumb” was substance abuse rehabilitation requires sobriety of six months to a year.   No evidence showed T.A.'s rehabilitation was imminent or could be accomplished within six months.   Rather, evidence proved T.A. had only reached the halfway point of her in-patient treatment, and during her stay she had violated the program's rules several times, even while the trial was ongoing.   Further, T.A. continues to need a regimented, restricted environment and no facts supported she had the capacity — within a set time-frame or at all — to exercise adequate judgment to independently provide for herself and function on her own, let alone safely and securely care for a child.

At this time, V.R.L. has been in foster care for four years of her short life.   V.R.L. demonstrated a distance from T.A. rather than a bond, showing anxiety, repressed behavior, and a decrease in function in T.A.'s presence.   Short term disruption would result from severing the child's relationship with T.A. On the other hand, the child would suffer significant and long-term harm if removed and separated from her resource parent, to whom she is strongly bonded.

New Jersey has a “strong public policy in favor of permanency.”  K.H.O., supra, 161 N.J. at 357.   See also J.C., supra, 129 N.J. at 26 (noting children have “an essential and overriding interest in stability and permanency”).   This requires the “best interests” test be viewed in light of amendments to N.J.S.A. 30:4C–15.1, “which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. § § 301, 671[ (a) ](16), 675(5)(A)(ii).”  N.J. Div. of Youth & Family Servs. v.C.S., 367 N.J.Super. 76, 111 (App.Div.), certif. denied, 180 N.J. 456 (2004).   These amendments clarify “[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being.”  Ibid. (citing N.J.S.A. 30:4C–11.1).   To this end, “the attention and concern of a caring family is ‘the most precious of all resources[,]’ ” particularly to a young helpless child who needs extensive care and nurturing.  In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (quoting A.W., supra, 103 N.J. at 613).   The evidence does not support the argument T.A. can end her destabilizing past behaviors to safeguard and nurture V.R.L. to provide for her future.

Judge Ospina's opinion, which fully reviewed and assessed the proofs presented by the parties, made detailed findings after identifying the substantial, credible evidence in the record fully supporting each of the four statutory prongs.   No error is found in the court's analysis of the evidence or the application of the law to the established facts.   Accordingly, substantially for the reasons set forth in Judge Ospina's written opinion, R. 2:11–3(e)(1)(A), we conclude the judgment terminating T.A.'s parental rights will not be disturbed.



FN1. V.R.L.'s father C.L. was also a named defendant in the litigation.   He voluntarily surrendered his parental rights and is not participating in this appeal..  FN1. V.R.L.'s father C.L. was also a named defendant in the litigation.   He voluntarily surrendered his parental rights and is not participating in this appeal.


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