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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–4905–12T3

    Decided: April 04, 2014

Before Judges Messano and Hayden.Christine Olexa Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;  Ms. Saginor, on the briefs). Melissa Medoway, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney;  Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Ms. Medoway, on the brief). Karen A. Lodeserto, Designated Counsel, argued the cause for the minor (Joseph E. Krakora, Public Defender, Law Guardian, attorney;  Ms. Lodeserto, on the brief).

Defendant M.W. (Mary) 2 appeals from the May 29, 2013 Family Part judgment of guardianship, which terminated her parental rights to her daughter N.J. (Nicole) and awarded guardianship to the New Jersey Division of Child Protection and Permanency (the Division).3  Defendant contends that the Division did not demonstrate by clear and convincing evidence prongs two through four of the best interests of the child test, N.J.S.A. 30:4C–15.1(a).   The Law Guardian supports termination and urges us to affirm the trial judge's determination.   Having reviewed the record in light of the contentions of the parties and applicable law, we affirm.

We discern the following from the record.   Mary had three children, C.L. (Candace), born in 1998;  K.W. (Kevin), born in 2001; 4  and Nicole, born in 2008.   The family first came to the Division's attention in August 2004, and thereafter had several unsubstantiated reports of abuse and neglect.   Although the Division determined the domestic violence allegations were unfounded, it nevertheless referred Mary to domestic violence counseling.

On March 6, 2008, the Division substantiated an allegation of physical abuse involving Mary severely beating Kevin with a belt.   Then, on September 16, 2009, the Division found a report of abuse involving Kevin having a black eye and Mary consuming excessive alcohol in the home, was unfounded, but raised child welfare concerns.   The Division requested Mary complete a substance abuse assessment.   Mary agreed;  however, she failed to show up for three appointments.   The Division referred Mary for an assessment a second time, but she again failed to attend her scheduled appointments.

In 2010, the Division sought the assistance of the Family Part due to Mary's failure to cooperate.   On May 10, 2010, with Mary's consent, the court granted the Division care and supervision of the children.   After Mary completed a substance abuse evaluation, the court terminated the litigation on October 18, 2010, at the Division's request.

Less than two weeks later, on October 29, 2010, the Division received another referral alleging domestic violence in front of the children and possible substance abuse.   Specifically, the reporter stated that Mary had set Edward's clothes on fire and thrown them out of their third-story window.   Mary admitted to the Division investigator that she and Edward were drinking that night, they fought over Nicole's paternity, and Edward slapped her.   She denied setting fire to his clothes, but the police found smoldering clothes outside when they arrived, and subsequently arrested Mary for arson.   Nicole and Candace were present during this incident.   The Division substantiated abuse and neglect against both parents.

Thereafter, the Division provided numerous services and referrals to Mary, including services from Family Preservation Services, the Substance Abuse Initiative, Preferred Behavioral Health, Preferred Children's Services, the Challenge Program, Family Intervention Services, Inc., and the Emergency Child Assistance Program.   Mary was subsequently terminated for noncompliance from many of these programs, and often the Division re-referred her several times.

The Division filed an order to show cause on May 5, 2011, seeking care and supervision of Mary's three children based on the October 29, 2010 incident and her subsequent noncompliance with services.   In granting the Division's relief, the judge ordered Mary to comply with all scheduled services and warned that failure to comply with his order could result in the Division seeking custody.   On June 9, 2011, the judge granted the Division custody of the three children based on allegations of domestic violence, substance abuse, and failure to comply with court-ordered services.   The next day, the Division placed the children with Jenny.

Immediately following the children's removal, the Division again referred Mary for evaluations, services, and psychological and substance abuse treatment.   Mary underwent a substance abuse assessment on June 23, 2011, and was referred to an intensive outpatient program, from which she was later discharged for noncompliance.   Mary attended the majority of her scheduled visits with the children, but was inconsistent in her attendance of the scheduled parenting groups.

On October 24, 2011, at the fact-finding hearing, Mary stipulated that

[s]he placed the children at risk of harm by engaging in ongoing alcohol abuse while her children were in her legal and physical custody which constitute[d] abuse/neglect under the statute;  had an altercation at her home between she and [Edward] in October 2010 in which police responded to her home after she set fire to [Edward's] clothing in the presence of the children, while intoxicated with alcohol;  had an alcohol problem and failed to adequately address her alcohol problem while the children were in [her] legal and physical custody plac[ing] them at risk of harm;  [and] used alcohol in excess to the point of intoxication.

Subsequently, Mary entered and completed an inpatient substance abuse program at Trinitas Hospital, and began a partial-care outpatient program at Eva's Village on November 17, 2011.   Eva's Village discharged Mary for noncompliance on May 4, 2012, with a recommendation for a higher level of care.   Also in May 2012, Mary was terminated for noncompliance from her therapeutic psychological program.   During this time frame, Mary was involved in two additional domestic violence incidents with Edward.

Following a May 21, 2012 permanency hearing, the trial judge found that termination of parental rights followed by adoption was an appropriate course of action based on Mary's continued pattern of domestic violence, her continued positive test results for alcohol, her failure to comply with services and resulting discharges, and her failure to progress in the visitation program.   Consequently, the Division filed this guardianship action on July 5, 2012.

Mary began another inpatient substance abuse treatment at Eva's Village on November 8, 2012.   A May 7, 2013 report from Eva's Village indicated Mary had made little progress in addressing her emotional, behavioral, cognitive, and alcohol dependence symptoms and had a high risk of relapse.

During a January 17, 2013 psychological evaluation by Dr. Robert Kanen, Psy.D., Mary admitted her alcohol abuse problem and disclosed that in the previous two years she drank at least a pint of vodka every day, but claimed to be sober since November 4, 2012.   Mary also acknowledged her history of domestic violence with Edward and with Candace's father.   The doctor noted that Mary had been physically abusive to at least two of her children and showed evidence of serious personality problems.   In his opinion, she was at a high risk of relapse, and her ability to provide a permanent, safe, and secure home for her children in the foreseeable future was poor.   Dr. Kanen also performed a bonding evaluation and found that the attachment between Mary and her children was “seriously impaired,” with an “insecure and avoidant attachment[.]”

On March 1, 2013, Dr. Antonio W. Burr, Ph.D. performed a psychological evaluation of Mary. Dr. Burr found Mary to be “a chronically depressed and unstable woman” who had difficulty managing on her own.   Moreover, the doctor opined that she was at risk of relapse as she used “alcohol to contain her emotionality and to ameliorate her suffering.”   He concluded that Mary had an uncertain prognosis and was “not able to adequately address or provide for [Nicole's] needs for daily care or protection.”   Dr. Burr's bonding evaluation determined that Nicole was transitioning to Jenny “as the person from whom she expect[ed] to resolve her day to day physical, emotional, and developmental needs.”   He concluded that Jenny, but not Mary, could provide the permanency Nicole needed, and Jenny could ameliorate any sense of loss Nicole might experience.

Judge George E. Sabbath held the guardianship trial on four nonconsecutive days in March and April 2013.   At the trial, Dr. Kanen, a Division caseworker, and Jenny testified for the Division.   Dr. Burr testified for the Law Guardian, who supported the Division's request for termination.   Mary presented no witnesses on her behalf.

On May 29, 2013, Judge Sabbath issued a comprehensive oral opinion terminating Mary's parental rights to Nicole so that Jenny could adopt her.   The judge concluded that, under N.J.S.A. 30:4C–15.1(a), the Division had proven its case by clear and convincing evidence.

The judge found that Mary had endangered Nicole's safety, health, and development due to her alcohol abuse, domestic violence, and noncompliance with services.   The judge determined that Mary was unwilling or unable to remedy the harm that prompted Nicole's removal.   He noted Mary's repeated failures to comply with services, and her resistance to alcohol rehabilitation services.   The judge pointed out that, while Mary had maintained sobriety for four months, she had done so only in a highly-structured inpatient program, not on her own while dealing with external stressors.   The judge found that the evidence failed to show that Mary would obtain a lasting sobriety in the foreseeable future.

The judge meticulously catalogued the numerous services provided to Mary and her family to correct the circumstances that led to Nicole's removal.   He found that the Division consistently endeavored to remove or ameliorate the circumstances that necessitated the Division's intervention.   The judge also found that the Division had appropriately explored alternatives to termination of rights, and correctly determined that KLG was not appropriate because adoption was both likely and feasible.   The judge found that, based on his observations of Jenny's testimony, she would proceed to adoption if Mary's rights were terminated.

Finally, the judge determined that termination of Mary's parental rights would not do more harm than good, based in part on the bonding evaluations of Drs. Kanen and Burr. The judge noted that both testifying experts, whom he found credible, indicated that removing Nicole from Jenny “would cause serious and enduring harm which [Mary] could not ameliorate.”   Moreover, the judge found that Mary did not have the capacity to safely parent Nicole and Jenny could ameliorate any harm caused by the termination of Mary's rights as Nicole was bonded to Jenny.

From our independent review of the record we agree that substantial evidence exists to support the judge's conclusion.   We affirm essentially for the reasons expressed in Judge Sabbath's thoughtful and thorough opinion of May 13, 2013.   We add only the following comments.

In a guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse.  In re Guardianship of K.H.O., 161 N.J. 337, 346–47 (1999);  see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279–80 (2007).   When seeking termination of parental rights under N.J.S.A. 30:4C–15.1(a), the Division has the burden of establishing by clear and convincing evidence that:

(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 not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child.   N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166–67 (2010);  N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 258 (App.Div.2005).

On this appeal, our review of Judge Sabbath's decision is limited.   Ordinarily, we will defer to a trial judge's factual determination unless those findings “went so wide of the mark that a mistake must have been made.”   M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted).   We will not disturb the Family Part's factual findings so long as “they are ‘supported by adequate, substantial and credible evidence.’ ”  In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App.Div.1993) (citations omitted).

We owe this deference to the trial judge because he has had “the opportunity to make first-hand credibility judgments” and to gain a “ ‘feel of the case’ ” over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record.  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293).   Gauged by those standards, we find no basis to disturb Judge Sabbath's credibility determinations, his factual findings, or his conclusion to terminate Mary's parental rights.

The first prong of the best interests test under N.J.S.A. 30:4C–15.1(a)(1) requires us to “determine whether the ‘child's safety, health or development has been or will continue to be endangered by the parental relationship.’ ”   M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C–15.1(a)(1));  see also In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).   The second prong relates to parental unfitness and requires the court to decide “ ‘whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.’ ”  I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)).   As to the first and second prongs, the evidence is clear and convincing that Mary's alcohol abuse, poor judgment, engagement in prolonged abusive relationships, and failure to comply with services harmed Nicole and that, as of the time of the trial or in the foreseeable future, Mary was not and would not be able to safely parent Nicole.

The third prong contemplates that the Division will make reasonable efforts to assist the parent to correct and overcome the circumstances that led to the removal of the child.  In re Guardianship of K.H.O., supra, 161 N.J. at 354.   Judge Sabbath found that the Division had provided Mary with a wide array of services.   We agree.   The Division worked intensively with Mary to promote reunification.   Nevertheless, “[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success.”  In re Guardianship of D.M.H., supra, 161 N.J. at 393.

Additionally, the record shows that the Division considered alternatives to termination, including KLG for Nicole.   KLG is an appropriate alternative in cases where “adoption of the child is neither feasible nor likely [.]”  N.J.S.A. 3B:12A–6(d)(3)(b).  “[W]hen the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C–15.1(a)(3).”  N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004).   We disagree with Mary's contention that adoption was not feasible because Jenny began to consider KLG as a viable alternative.   We defer to Judge Sabbath's factual finding that Jenny was not “equivocal in stating that she [would] adopt the child, thus meeting the feasible and likely test.”   The judge's determination that there was little doubt that Jenny's preference was for termination and adoption is fully supported by the record.

Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether “the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents.”  In re Guardianship of K.H.O., supra, 161 N.J. at 355.   We are in accord with Judge Sabbath that, balancing the lack of harm to Nicole from the termination of Mary's parental rights with the benefit of remaining in a stable permanent home, termination of parental rights will do much good and minimal harm.   We acknowledge that Mary had a short period of sobriety in a restricted setting, but the experts agreed that she had a long way to go in her efforts to achieve lasting sobriety.   A child cannot wait for a parent to become fit.   See 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).

In sum, we conclude that Judge Sabbath did not err in determining that Nicole's best interests require termination of Mary's parental rights so that she can be adopted by her current resource parent.



FN2. We use pseudonyms to protect the privacy of the parties and the minor..  FN2. We use pseudonyms to protect the privacy of the parties and the minor.

FN3. The court terminated the parental rights of Nicole's father, E.J. (Edward), on May 8, 2013, and he has not appealed..  FN3. The court terminated the parental rights of Nicole's father, E.J. (Edward), on May 8, 2013, and he has not appealed.

FN4. On March 27, 2013, Mary agreed to an identified surrender of her rights to Candace and to Kinship Legal Guardianship (KLG) as to Kevin to their resource parent, Mary's cousin, J.D. (Jenny).  Neither child is the subject of this appeal..  FN4. On March 27, 2013, Mary agreed to an identified surrender of her rights to Candace and to Kinship Legal Guardianship (KLG) as to Kevin to their resource parent, Mary's cousin, J.D. (Jenny).  Neither child is the subject of this appeal.


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