DCPP VS. S.R. AND R.S., IN THE MATTER OF THE GUARDIANSHIP OF M.S. (FG-16-0079-16, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3802-16T4
A-3803-16T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

Plaintiff-Respondent,

v.

S.R. and R.S.,

Defendants-Appellants.
_____________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.S., a Minor.
_____________________________________

Argued October 1, 2018 – Decided October 9, 2018

Before Judges Fasciale and Gooden Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FG-16-0079-16.

Matthew Van Natten, Designated Counsel, argued the
cause for appellant S.R. (Joseph E. Krakora, Public
 Defender, attorney; Stephen P. Dempsey, Designated
Counsel, on the brief).

Ryan T. Clark, Designated Counsel, argued the cause
for appellant R.S. (Joseph E. Krakora, Public Defender,
attorney; Ryan T. Clark, on the briefs).

Viviane C. Sullivan, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Viviane C. Sullivan, on
the brief).

Noel C. Devlin, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Noel C. Devlin, on
the brief).

PER CURIAM

In these consolidated appeals, S.R. (the mother) and R.S. (the father)

(collectively defendants) appeal from an April 21, 2017 order terminating their

parental rights to their son M.S. (the child), born in 2014. Judge Richard M.

Freid entered the order and rendered a comprehensive forty-six page written

opinion. Defendants contend primarily that the Division of Child Protection and

Permanency (the Division) failed to sustain its burden of proof. We disagree

and affirm.

The mother has substance abuse and mental health issues. In 2014, the

Division received a referral from St. Joseph's Hospital, reporting that the mother

A-3802-16T4
2
gave birth to the child. The mother only had two prenatal visits, and

approximately one month before the child's birth, and on the day she gave birth

to the child, the mother tested positive for PCP. The Division substantiated the

mother for neglect, and executed an emergent Dodd removal of the child upon

his discharge from the hospital. The Division placed the child in a foster home,

where he is thriving and has remained ever since.

The Division attempted to locate the father immediately after the mother

identified him, but was unsuccessful. In March 2015, a Division worker met

the father while at the mother's residence, but he left abruptly and would not

provide the worker with a telephone number or address. In April 2015, the

police arrested the father and charged him with aggravated assault on a probation

officer. A judge later sentenced the father to prison.

At the FG trial, Division caseworker Jeanette Suarez testified and

described the Division's involvement with the mother, father, and child,

including the issues that led to the child's removal, and the efforts the Division

took to provide the parents with services. Dr. Robert Kanen, an expert in

psychology, also testified for the Division. The father also testified. Judge

Freid made detailed findings of fact and concluded that the Division proved by

clear and convincing evidence all four prongs of the best-interests standard.

A-3802-16T4
3
 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). However, that right 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.

To obtain parental termination, 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.
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;

A-3802-16T4
4
 (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.

The four prongs of the test are not "discrete and separate," but "relate to an d

overlap with one another to provide a comprehensive standard that identifies a

child's best interests." K.H.O., 161 N.J. at 348.

The scope of this court's review of a family judge's factual findings is

limited. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "When a biological parent

resists termination of his or her parental rights, the [trial] court's function is to

decide whether that parent has the capacity to eliminate any harm the child may

already have suffered, and whether that parent can raise the child without

inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388

N.J. Super. 81, 87 (App. Div. 2006). The factual findings, which undergird such

a judgment, "should not be disturbed unless 'they are so wholly insupportable as

to result in a denial of justice,' and should be upheld whenever they are

'supported by adequate, substantial and credible evidence.'" In re Guardianship

of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort,

Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that

A-3802-16T4
5
logically flow from those findings of fact are, likewise, entitled to deferential

consideration upon appellate review." R.L., 388 N.J. Super. at 89.

The mother contends that she did not harm the child. She contends that at

the time of the child’s birth, he was born without PCP in his system, and that

there were no signs of withdrawal symptoms. The first prong under the best-

interests test focuses on whether the child’s safety, health or development has

been or will continue to be endangered by the parental relationship. The

Division must prove that the child's health and development has been threatened

and will continue to be affected by the parent-child relationship. K.H.O., 161

N.J. at 348. The focus is not on a single or isolated event, but rather on "the

effect of harms arising from the parent-child relationship over time on the child's

health and development." Ibid. However, the court does not need to wait "until

a child is actually irreparably impaired by parental inattention or neglect" to find

child endangerment. In re Guardianship of DMH, 161 N.J. 365, 383 (1999)

(citing A.W., 103 N.J. at 616 n.14).

The judge found that the mother harmed the child by forcing the child into

the foster care system. Judge Freid noted the mother's long history with the

Division, which dates back to 2008. He pointed to the mother's lack of custody

of her three older children, her inability to maintain stable housing, and her

A-3802-16T4
6
history of unemployment. The judge further found that the mother placed the

child at risk of harm during her pregnancy by receiving limited prenatal care and

"continuing to actively use especially dangerous illicit substances and continued

to harm [the child] and to place him at risk of harm by continuation of tha t

process even after his birth."

There exists substantial credible evidence in the record to support the

judge's finding that the Division met prong one under N.J.S.A. 30:4C-15.1(a).

The mother delivered the child after testing positive for PCP, she had limited

prenatal care, and the Division removed the child due to the mother's use of

drugs. Since the child's birth, the mother has consistently tested positive for

PCP and has failed to complete any drug program. Dr. Kanen, the only expert

to testify at the trial, found the mother to be self-centered and primarily focused

on her own needs. According to Dr. Kanen, PCP is a "highly dangerous drug"

and "[a]ny child under her care at this time would be at risk of harm." Dr. Kanen

opined that the mother's prognosis for change was poor; she is "unpredictable,

inconsistent, and irresponsible," and she would have difficulty supporting

herself or her child.

The father contends that the Division failed to meet prong one under

N.J.S.A. 30:4C-15.1(a) because it did not prove that his incarceration harmed

A-3802-16T4
7
the child. The father relies on In re Adoption of Children by L.A.S., 134 N.J.

127, 136-37 (1993), in which our Supreme Court concluded that a parent’s

incarceration is a relevant factor in a termination proceeding, but it does not

justify termination as a matter of law. In L.A.S., the Court reasoned that the two

major grounds that justify termination are abandonment and unfitness. Id. at

134. The father further argues that a showing of abandonment requires a "broad

inquiry" that is "extremely fact sensitive" surrounding the relationship between

the parent and child before and after incarceration. R.G., 217 N.J. at 554-55.

The father contends that the judge failed to conduct the fact-sensitive broad

inquiry required to terminate his parental rights, and the judge's "vague

assertion" of harm stemming from his incarceration was insufficient. The father

contends that he engaged with the Division and was capable of taking care of

his child.

The judge found the father failed to cooperate with the Division at all

during the first five months of the child's life. The Division called the father

during that time, but he would hang up on the Division worker when she

announced herself and the purpose for the call. The judge also noted that the

father "shrugged them off" when the worker happened to meet the father at the

mother’s house, and that he left without getting any information. The judge

A-3802-16T4
8
found that up until the father's incarceration, he "actively avoided all contact

with the Division and the [c]ourt." The judge further found that the father

harmed the child by avoiding the Division and by failing to provide the child

with a safe and stable home, which also led to the child's placement with the

foster parents.

Therefore, there exists substantial credible evidence in the record to

support the judge's finding as to the father under prong one. Contrary to the

father's contention, the judge did not support his findings under prong one solely

on the father's incarceration, but he also considered the father's avoidance of the

Division during the first five months of the child's life. The father has admitted

to two felony convictions, beginning with a conviction for robbery in 2005. At

the time of the FG litigation, the father was in prison for aggravated assault on

a probation officer. According to Dr. Kanen's psychological evaluation, the

father "assumes a passive role in most relationships," and "[h]e shows a striking

lack of initiative and a general avoidance of independence is notable." Dr.

Kanen further opined that the father "has severe parenting deficits and has no

insight into these deficits . . . . He is irresponsible, fails to plan ahead and fails

to learn enough from experience to be arrest free."

A-3802-16T4
9
 The mother contends that the judge did not acknowledge her efforts to

treat her dependency issues, despite the limits placed on her due to her

homelessness and mental health issues. She argues that the judge did not give

enough weight to the fact that the mother requested the Division’s services in

obtaining job training to become a home health aide, or the fact that she is

currently employed as a security guard. She relies on this court's decision in

N.J. Div. of Youth & Family Servs. v. L.W., 435 N.J. Super. 189, 196 (App.

Div. 2014), in which we concluded that it is important for "impoverished,

homeless" parents to feel free to call the Division "in times of need, without fear

of being found neglectful . . . ."

But the mother's reliance on this case is misplaced. She asserts that the

Division did not provide her with assistance in getting independent living

accommodations, and her situation could not change without the Division’s

assistance. But in L.W., we were encouraging mothers to reach out to the

Division, without fear of being found neglectful. Ibid. Also, the mother fails to

acknowledge the Division's referral to Eva's Village Shelter, which she left

voluntarily after testing positive for PCP and being given the choice to go to an

inpatient facility or leave.

A-3802-16T4
10
 The second prong of the best interests test requires the Division to present

clear and convincing evidence that "[t]he parent . . . 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." N.J.S.A. 30:4C-15.1(a)(2). The relevant

inquiry for the trial court is whether the parent has cured and overcome the initial

harm that endangered the child, and "is able to continue a parental relationship

without recurrent harm to the child." K.H.O., 161 N.J. at 348.

As to the mother, the judge found that despite the Division's efforts to

provide her with services, she is unable or unwilling to correct the issues that

led to the child's removal. The judge did not rely solely on the mother's failure

to obtain stable housing. He specifically noted Dr. Kanen's opinion that the

mother could not articulate a plan for reunification with the child. The judge

considered the mother's almost decade long history with the Division and her

"serious substance abuse," which has been an issue throughout the last ten years.

The judge found that "there is no reasonably foreseeable basis" the situation

would change, noting that even throughout this litigation, the mother has refused

to engage in the recommended substance abuse treatment. The judge

acknowledged the mother's current employment, but found that the "very brief

period of employment is heavily outweighed . . . by the long history o f being

A-3802-16T4
11
unemployed, and so regular, continuing employment is certainly not to be

presumed for the future." The judge pointed to the mother's inability to establish

independent, appropriate housing. And throughout the litigation, the mother

failed to attend evaluations, failed to complete any substance abuse treatment

program, and failed to submit to urine screenings. She was discharged from

several parenting and visiting programs because of her noncompliance with the

programs' rules. Despite the Division's attempts, the mother has consistently

shown her unwillingness or inability to eliminate the harm facing the child if he

were returned to her custody.

The father contends that the trial judge did not engage in the required fact-

sensitive inquiry and that his repeated attempts to maintain contact and visits

with the child contradict the judge's finding that he is unable or unwilling to

eliminate the harm that has endangered the parental relationship. He asserts that

the visits were "good" and he and the child would "have fun, and laugh together."

The father also notes his "model behavior" in prison, which he asserts

demonstrates his willingness to eliminate his incarceration and parent the child.

As to the father, the judge focused on his active avoidance of the Division

after the child's birth, and his incarceration. The judge did not find the father's

testimony credible. The judge acknowledged that incarceration does not justify

A-3802-16T4
12
termination of parental rights as a matter of law, but reasoned that the father had

no relationship with the child even before his incarceration, "[i]n fact, he

shunned his parental obligations and avoided both the Division and the [c]ourt."

There exists substantial credible evidence to support the judge's finding

that the Division met its burden as to the second prong of the best-interests test.

As the judge found, the father's testimony was not credible, and the father was

actively avoiding the Division and the court. The father could have engaged

with the Division after meeting a Division worker at the mother's residence, but

he did not do so. The father's avoidance in the first five months of the child's

life contributed to the child's placement with foster parents. The father has been

incarcerated for most of the child's life. Moreover, Dr. Kanen opined that the

father "cannot provide this child with a permanent, safe and secure home and

has had very limited involvement with his son." When asked where he plans to

live after his release from prison, the father stated, "I will be homeless I guess."

The mother contends that the Division predetermined, shortly after the

child's birth, to permanently remove the child from the mother and have the child

adopted by non-family foster parents. She further argues that the Division did

not fully explore placement of the child with the mother's stepsister. Lastly, the

A-3802-16T4
13
mother asserts that the Division did not provide services tailored to the mother's

housing needs and mental health issues.

The third prong requires evidence that "[t]he [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." N.J.S.A. 30:4C -

15.1(a)(3). "Reasonable efforts may include consultation with the parent,

developing a plan for reunification, providing services essential to the

realization of the reunification plan, informing the family of the child's progress,

and facilitating visitation." N.J. Div. of Youth & Family Servs. v. M.M., 189

N.J. 261, 281 (2007). However, "[t]he diligence of [the Division]'s efforts on

behalf of a parent is not measured by their success." DMH, 161 N.J. at 393.

The judge found that the Division "has made more than reasonable efforts

to correct the circumstances which resulted in the removal of [the child] and the

institution of this litigation." The judge referred to two doctors, Dr. Gentile,

who conducted a psychiatric evaluation, and Dr. Kanen, who conducted a

psychological evaluation. Both doctors concluded that the mother's prognosis

for sobriety is poor and doubtful, and that her condition may be "irreversible."

The judge noted the Division's continued efforts to provide the mother with

A-3802-16T4
14
services, but her avoidance of the programs, or noncompliance with them, which

would result in her discharge. The judge explained the Division's attempts to

provide the mother with housing programs, such as Eva's Village Shelter, from

which she was discharged for failure to comply with treatment, and her

involvement in an altercation with another resident. The judge also noted the

Division's attempts to provide her with mental health services, which were

specifically geared toward substance abusers.

As is evident from the judge's opinion, there exists substantial credible

evidence that the Division provided the mother with multiple reasonable

services, throughout the current litigation (and even its involvement with the

mother for her other children). The Division provided her with services at Eva's

Village Shelter, multiple substance abuse assessments, programs for parenting

training and visitations, and a program to receive individual psychotherapy.

Despite the mother's contention, the judge found that the Division properly

considered and ruled out the family members put forth by the mother and father,

including the paternal aunt, maternal uncle, and mother's stepsister. As to the

stepsister, she lived in an apartment with bars on the door and windows, which

posed a safety hazard.

A-3802-16T4
15
 The father contends that the Division did not provide a single meaningful

service to him. He further asserts that the Division did not provide reasonable

services for visitation with the child. He relies on our Supreme Court's decision

in DMH, in which the Court held that the Division must "foster and maintain the

bond between the parent and child as a basis for the reunification of the family."

161 N.J. at 390. The father also points out the Division's own regulations, which

state that frequent and long visits are beneficial for most children placed out of

the home. He also cites to our Supreme Court's decision in N.J. Div. of Youth

& Family Servs. v. I.S., 202 N.J. 145, 178 (2010), in which the Court noted that

the Division limited the father's visits with his son both in respect of frequency

and time and called the one-hour-per-week-supervised visitation "paltry."

The father's reliance on I.S. is misplaced. In I.S., the Court reasoned that

"[i]n a case . . . where the parent is identified and located after the initial

placement of the child, there is no viable reason a schedule of reasonable

visitation was not established immediately or within a very short period of time."

Ibid. This case is distinguishable; the father fails to acknowledge the fact that

he was not immediately located upon placement of the child with the foster

parents. As the judge found, the father actively avoided the Division and did

not attend the court hearing that a Division worker told him about. Moreover,

A-3802-16T4
16
he does not take into consideration that at the time the visitation began, he was

incarcerated.

The judge found that the Division "had a substantial opportunity to try to

work with [the father] from [the child's] birth until his incarceration," but he

went missing and avoided the Division and the court. The judge further found

that when the Division finally found the father in prison, the Division met with

him and provided him with genetic testing – as he requested – and engaged with

prison authorities so the visitations could begin. The judge found that the

Division provided the father with visitation and a psychological and bonding

evaluation, but they were unable to provide other services, such as anger

management programs, because they were constrained by the rules of the prison.

There exists substantial credible evidence that the Division met prong

three and made reasonable efforts to provide services to help the father correct

the circumstances which led to the child's placement outside of the home in the

first place. As the judge correctly noted, the Division could have provided the

father with more services if he had immediately engaged with the Division after

learning about the birth of his son – prior to his incarceration. Moreover, the

Division provided the father with services that were available under the

circumstances, such as a psychological and bonding evaluation, and visitations

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17
with the child. The Division attempted to provide the father with more services,

but was unable to because of the prison's policies. Yet, the father did receive a

parenting skills class after signing up for it himself. Despite the father's

contention that the Division could have contacted the prison to move the father's

name higher on the waiting list for services, Ms. Suarez, the Division

caseworker, testified that in her contact with the prison, it was clear to her that

the prison would determine when the services would be rendered.

The mother does not contest the judge's finding on prong four, but the

father contends that the record is "filled with many positive interactions between

[the child] and [the father]." He argues that throughout the litigation the father

has made it clear to the Division that he wants to be part of the child's life and

play a parental role. In support of his argument, the father notes the first time a

Division worker visited him in prison and he told the Division worker that he

wanted to be part of the child's life. He also points to the times when the father

accompanied the mother to her visitations with the child. He notes that the foster

mother stated that a visitation between the father and the child "did go very well"

and the father "was appropriate." The father also relies on Dr. Kanen's opinion

in which he described the father as "logical" and "coherent" and did not see any

evidence of mental illness.

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18
 The father relies on this court's decision in N.J. Div. of Youth & Family

Servs. v. T.C., 251 N.J. Super. 419, 439 (App. Div. 1991), in which the court

observed that "[a] final separation from a biological parent is a harm in itself

. . . ." (alteration in original). Moreover, the father relies on our Supreme Court's

decision in In re D.C., 203 N.J. 545, 576 (2010), where the Court noted that

"under the best of circumstances, adopted children experience more emotional

stressors than their non-adopted peers." The father notes the foster parents'

recognition that the child "will struggle with being 'different' when he grows

up."

Under the fourth prong, the court must ask whether "after considering and

balancing the two relationships, the child will suffer a greater harm from the

termination of ties with [his] natural parents than the permanent disruption of

[his] relationship with [his] foster parents." K.H.O, 161 N.J. at 355. This prong

"cannot require a showing that no harm will befall the child as a result of the

severing of biological ties." Ibid. "The overriding consideration under this

prong remains the child's need for permanency and stability." N.J. Div. of Youth

& Family Servs. v. L.J.D., 428 N.J. Super. 451, 491-92 (App. Div. 2012).

The judge was "firmly convinced" that the child did not have a secured

bond with the father and that the father "shunned the opportunity to begin to

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19
create one by his intentional shunning of both the Division and the [c]ourt, . . .

and that any attempt at finally starting one in prison, was completely

unsuccessful due to the environment they had to be conducted in." The judge

noted the fact that Dr. Kanen had to end the bonding evaluation between the

child and the father after a few minutes because of the child's extreme distress.

The judge balanced whether the child would suffer a greater harm from the

termination of the parental rights of the natural parents than from the permanent

disruption of a relationship with the child's foster parents. He also considered

Dr. Kanen's expert opinion as to the child's need for permanence and the child's

secured attachment to his foster parents, who the child has been with since the

child was three days old.

Substantial credible evidence exists to support the judge's finding that the

Division met its burden under prong four. The Division provided Dr. Kanen's

expert opinion as to the relationship between the child and the biological parents

and the child and the foster parents. Although, as the father noted, one of the

visits between the father and the child "did go very well," it is not enough.

According to Dr. Kanen, during the bonding evaluation between the father and

the child, the child became so distressed that he had to end the evaluation. The

child was "screaming and crying" and "could not be settled down or comforted

A-3802-16T4
20
. . . ." Dr. Kanen concluded that there is no attachment between the father and

son. The father's assertion that there were positive interactions between the

father and the child does not negate Dr. Kanen's expert opinion as to the lack of

attachment.

Furthermore, during the bonding evaluation of the child and the foster

parents, Dr. Kanen observed that the child was "well-related" to the foster

parents; the child was "happy" and "comfortable with physical closeness." Dr.

Kanen concluded that the child "is securely attached to the foster parents" and

if the child was removed from their care, the child would be "severely

traumatized."

Affirmed.

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21