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NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.H., A-4945-12T2. (2014)

Court: Superior Court of New Jersey Number: innjco20140204267 Visitors: 9
Filed: Feb. 04, 2014
Latest Update: Feb. 04, 2014
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM. Defendant D.H. appeals a judgment terminating her parental rights to her seventh child, S.A.H., who was born on December 15, 2007, 1 largely as a result of defendant's inability to resolve her long-standing substance abuse problem. We affirm substantially for the reasons set forth by Judge Ronald D. Wigler in his written opinion. Parents have a constitutionally protected right to the care, custody and control of t
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant D.H. appeals a judgment terminating her parental rights to her seventh child, S.A.H., who was born on December 15, 2007,1 largely as a result of defendant's inability to resolve her long-standing substance abuse problem. We affirm substantially for the reasons set forth by Judge Ronald D. Wigler in his written opinion.

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 of Child Protection and Permanency (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.

After a two-day trial, Judge Wigler rendered a fifty-two page written opinion in which he thoroughly reviewed the evidence, made credibility findings, and determined the Division proved all four prongs by clear and convincing evidence.

As to the first and second prongs, which are interrelated and overlap, N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007), the judge made extensive findings regarding defendant's long-standing substance abuse problem. Following his birth, the child in question suffered withdrawal symptoms due to defendant's use of opiates and other illegal substances during her pregnancy, leading to the child's removal from defendant's care. Mother and child were reunited in February 2009 while defendant was participating in Straight and Narrow's Mommy and Me Program, but the child was again removed in September 2011 due to a positive drug screen while defendant participated in another program. Notwithstanding, defendant was again reunited with her youngest child in December 2011, after she entered a Renaissance House program. Defendant, however, failed to follow the program's rules and was asked to leave when she relapsed on an overnight pass. Consequently, the child was removed for a third time and placed in foster care in April 2012, where he remains to date. The judge additionally found defendant "has failed to consistently comply with Division services, to address her long-term drug addiction or to demonstrate stability, including appropriate housing and employment" not only during the five years since the birth of the child in question but also for the more than twenty years defendant has been involved with the Division.

We lastly refer to the judge's findings on the fourth prong, which requires a finding that termination "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The judge recognized that a Division expert, Dr. Mark Singer, testified the child had formed "dual attachments" to both defendant and his foster mother, a fact Dr. Singer found was unsurprising considering the child's age and history of multiple removals. The judge relied on Dr. Singer's conclusion that "despite the dual attachments and the fact that [the child] would suffer great harm if removed from the care of his biological mother, [the foster mother] is able to mitigate that harm . . . whereas [defendant] is not likely to become a viable parenting option for [the child] now or in the foreseeable future." The judge also observed that the defense expert, Dr. Gerard A. Figurelli, acknowledged the foster mother "possesses the capacity to provide the type of parenting and to access the types of services that would be appropriate to attempt to mitigate the loss [the child] would experience if severed from his mother, and that a transition to the care of [defendant] is unlikely given her long standing and unaddressed substance abuse issues and non-compliance with Division services." In this regard, the judge concluded:

[A]fter providing [defendant] with years of services, as of the date of trial, all the experts agreed that she has yet to achieve sufficient stability to resume the care of her son, and as a result there is no prospect of [defendant] being able to provide a safe and appropriate home for [the child] in the foreseeable future. It is important to note that although Dr. Figurelli does not outwardly assert that there is no prospect of [defendant] being able to parent in the foreseeable future, he does assert that she would have to be compliant with services and remain drug-free to provide a safe and appropriate home for [the child]. Given the last twenty (20) years of Division involvement, especially the last five (5) years since [the child's] birth, it is clear that [defendant's] substance abuse issues have and will remain unaddressed. As a result, this [c]ourt rejects Dr. Figurelli's opinion that [defendant] should be given more time. Furthermore, terminating the parental rights of [defendant] will afford [the child] the permanency and stability that he needs and deserves in his current foster home because despite experiencing harm and a great sense of loss if removed from his mother, Dr. Singer testified that every day this litigation continues, it is a struggle for this child. Thus, as the Supreme Court has recently re-affirmed, a child's right to know that he or she has a permanent home is "critical" to his or her emotional development. [N.J. Div. of Youth & Family Servs. v.] F.M., 211 N.J. 420, 453 (2012). . . . . Given [defendant's] prognosis, [the child's] strong need for closure in this matter, and the fact that there is absolutely no basis in the record to delay permanency for [the child] any longer, this [c]ourt concludes the Division has clearly and convincingly satisfied prong four[.]

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," we only disturb factual findings when "manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). In addition, we defer to the family court's "special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412. The judge's findings on each of the four prongs, which we have only briefly recounted, are fully supported by the evidence the judge found credible. We, thus, affirm substantially for the reasons set forth in Judge Wigler's thoughtful written opinion.

Affirmed.

FootNotes


1. Three of defendant's children are over the age of twenty-one years. A fourth passed away in 2004 at the age of sixteen. Defendant surrendered her parental rights to her fifth and sixth children.
Source:  Leagle

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