DCPP VS. J.S. AND K.Y. IN THE MATTER OF THE GUARDIANSHIP OF L.Y. (FG-08-0046-16, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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 NO. A-0480-17T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.S.,

Defendant-Appellant,

and

K.Y.,

Defendant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF L.Y.,

a Minor.
__________________________________

Argued June 5, 2018 – Decided June 22, 2018

Before Judges Reisner, Mayer, and Mitterhoff.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester
County, Docket No. FG-08-0046-16.
 Eric R. Foley argued the cause for appellant
(Law Offices of Afonso Baker Archie Foley, PC,
attorneys; Eric R. Foley, on the brief).

Sara M. Gregory, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Nicholas Logothetis, Deputy Attorney General,
on the brief).

Melissa R. Vance, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Melissa R. Vance, on the brief).

PER CURIAM

Defendant J.S.1 appeals from a July 28, 2017 judgment of

guardianship terminating his parental rights regarding his son,

L.Y. (Lucas).2 The Division of Child Protection and Permanency

(Division) and Lucas's Law Guardian support the judgment.

Defendant contends that the Division failed to establish each

prong of the best interests test, N.J.S.A. 30:4C-15.1(a). We

affirm.

On March 15, 2016, the Division filed a verified complaint

for guardianship of Lucas. Judge Timothy W. Chell conducted the

guardianship trial over the course of eight days from February

1
We use initials and pseudonyms to protect the parties' privacy
interests. R. 1:38-3(e).
2
Luca's mother, K.Y., voluntarily surrendered her parental rights
and is not participating in this appeal.

2 A-0480-17T1
through July 2017. On July 28, 2017, Judge Chell issued an order

terminating defendant's parental rights and awarding the Division

guardianship over Lucas. Judge Chell issued a thirty-nine page

written decision in support of termination of defendant's parental

rights.

We need not detail the circumstances that led to the

Division's filing of a guardianship complaint. We incorporate the

factual findings and legal conclusions in Judge Chell's July 28,

2017 memorandum and opinion.

We highlight the judge's key findings in support of the

termination of defendant's parental rights. Defendant was never

Lucas's primary caregiver. Defendant did not establish paternity

until Lucas was approximately eighteen months old, shortly after

which defendant was either incarcerated or subject to a restraining

order precluding visitation with his son. Defendant suffers from

substance abuse and anger management issues, has a history of

domestic violence against Lucas's mother, K.Y., refused to comply

with random drug testing, and admitted to using drugs during the

trial, contrary to the conditions of his parole. Defendant lied

to treatment providers, Division employees, and the court

regarding his criminal history, substance abuse history, and

treatment history. He admitted lying to manipulate his treatment

providers and engaging in treatment solely to "look good."

3 A-0480-17T1
 The experts on behalf of the Division and the Law Guardian

testified at trial that defendant was unable or unwilling to

eliminate the harm to Lucas and that permanency through adoption

by the maternal grandparents was in Lucas's best interests. We

summarize the experts' testimony during the guardianship trial to

give context to Judge Chell's order terminating defendant's

parental rights.

Dr. James L. Loving, a psychologist for the Division,

testified defendant was at "very high risk for drug relapse and

drug abuse," and "a[t] risk in the area of domestic violence and

violence more generally." Dr. Loving stated these risks, combined

with defendant's significant likelihood for re-arrest and re-

incarceration, precluded Dr. Loving from opining that defendant

could parent Lucas safely or provide a secure, stable home for

Lucas in the foreseeable future.

Dr. Loving testified that removing Lucas from the care of his

maternal grandparents would "place[] him at high risk for long-

term harm." Dr. Loving supported termination of defendant's

parental rights and adoption of Lucas by the maternal grandparents.

Dr. Roberta E. Dihoff, a psychologist retained by the Law

Guardian, testified that defendant's "inconsistent pattern of

reporting issues, . . . apparent lack of insight concerning the

seriousness of past issues, as well as the degree of support he

4 A-0480-17T1
currently has in his daily life, raises a concern about his ability

to parent if he were to once again leave the family home."

Dr. Dihoff acknowledged that Lucas was happy and comfortable

with both defendant and the maternal grandparents. Dr. Dihoff

observed that "[w]hile [defendant] shares an affectionate

relationship with Lucas, due to many factors it does not have the

strength or security" of Lucas's relationship with the maternal

grandparents. She concluded, "the bond formed with [the maternal

grandparents] prior to [defendant and his family's] involvement

is central in [Lucas]'s life and removal from the [maternal

grandparents] would jeopardize his emotional well-being" and

"cause significant distress."

Dr. Dihoff testified that defendant's ability to be an

adequate parent to Lucas was "a very difficult question." She

stated that defendant was doing well, but his history of drug use,

and the extent and variety of drugs he used, put him in a

statistically high-risk group for relapse.

With respect to the best interests of the child, Dr. Dihoff

testified the critical considerations are the age of the child,

how long the child has lived with each caretaker, and the level

of support the child would have if the "primary attachment" were

to be disrupted. She pointed out that Lucas was in preschool and

spent most of his life with the maternal grandparents. Dr. Dihoff

5 A-0480-17T1
testified it was "unlikely," even if defendant maintained sobriety

and increased visits with Lucas, that defendant could form a bond

with Lucas as strong as his bond with the maternal grandparents.

Dr. Dihoff opined that allowing the maternal grandparents to adopt

Lucas would not do more harm than good.

Dr. Chester E. Sigafoos, a psychologist retained by

defendant, also testified. Dr. Sigafoos stated that, despite

diagnosing defendant with opioid abuse disorder, alcohol abuse

disorder, and anxiety, he believed defendant was capable of

parenting Lucas. According to Dr. Sigafoos, being an addict was

not an impediment to being a good parent, as long as the parent

stays sober. He concluded that defendant was able to safely parent

Lucas based upon "[his] experience working in these types of cases,

seeing what [defendant] has gone through throughout his life to

where he's gotten himself now and that he is maintaining proper

behavior."

Dr. Sigafoos's conclusions were based upon defendant's

reporting that he was sober and attending programs. However, when

confronted with defendant's positive drug tests, Dr. Sigafoos

stated his opinion was not changed because "test results can be

flawed." Dr. Sigafoos indicated that the history of substance

abuse in his expert report was based on his interview with

defendant. Even if a false history of drug use was provided by

6 A-0480-17T1
defendant, Dr. Sigafoos suggested that it would not alter his

evaluation.

With respect to termination of defendant's parental rights,

Dr. Sigafoos concluded that termination would result in "serious

and enduring harm." Dr. Sigafoos, recognizing the bond between

Lucas and the maternal grandparents, recommended "shared custody"

of Lucas by defendant and the maternal grandparents.

In addition to the testimony of the experts, Judge Chell

considered the testimony of the maternal grandparents, defendant,

and defendant's father.

In his detailed opinion, Judge Chell found defendant "lacked

any credibility" in light of his well-documented and admitted

history of lying to supervisors, treatment providers, the

Division, and the court. The judge found Dr. Sigafoos to be less

credible than Drs. Loving and Dihoff. The judge found Drs. Loving

and Dihoff to be clear and even-handed in their testimony. As a

result, Judge Chell accorded greater weight to the testimony of

Drs. Loving and Dihoff.

The judge also analyzed each of the prongs of the best

interests test. N.J.S.A. 30:4C-15.1(a).

Based on the credible, clear, and convincing evidence, as to

prong one, Judge Chell noted concerns about defendant's ability

to provide safe and effective parenting due to defendant's

7 A-0480-17T1
substance abuse and acts of domestic violence. The judge concluded

that defendant poses a high risk of re-arrest and re-incarceration

attributable in part to his extensive and lengthy history of drug

use. The judge found defendant was unlikely to maintain sobriety

and provide a stable home for Lucas. The judge determined that

Lucas's "safety, health, and development have been and will

continue to be endangered by the parental relationship with

[defendant]."

With respect to prong two, Judge Chell found defendant's high

risk of relapse and re-incarceration would cause harm to Lucas.

The judge concluded defendant was unable or unwilling to remove

that harm. The judge further found that delaying permanent

placement or removing Lucas from the care of the maternal

grandparents, who have been his primary caregivers for almost his

entire life, would cause lasting harm. Relying on the testimony

of Drs. Loving and Dihoff, Judge Chell concluded the chaotic home

situation during Lucas's young life, prior to his living with the

maternal grandparents, made the need for future permanency and

security crucial. All three experts testified that Lucas was

attached to the maternal grandparents. Drs. Loving and Dihoff

testified that removal from the care of the maternal grandparents

would cause serious and permanent harm to Lucas.

8 A-0480-17T1
 With respect to prong three, Judge Chell found the Division

made reasonable efforts to reunite the family and provide adequate

services to defendant to achieve reunification. The judge noted

the Division provided services to defendant, including substance

abuse assessment and counseling, batterer's counseling, and drug

testing, and coordinated visitation between defendant and Lucas

as soon as defendant was released from prison. However, defendant

did not always comply with the offered services and had relapsed

by continuing to use drugs during the guardianship trial.

With respect to prong four, Judge Chell found the risks posed

by defendant would increase significantly once defendant was no

longer supervised by the Division and his parole officer. Based

on defendant's non-compliance with services and inability to stay

sober, the judge found "if [Lucas] were reunified with his father

there is a very high risk that the reunification would be very

short term and unsuccessful," concluding "[d]efendant does not

have the ability to safely parent [Lucas]." Judge Chell determined

that the maternal grandparents would mitigate any confusion,

sadness, or harm that might be experienced by Lucas subsequent to

the termination of defendant's parental rights. Thus, the judge

concluded that termination of defendant's parental rights will not

do more harm than good to Lucas.

9 A-0480-17T1
 Having considered the testimony and having reviewed the

documentary evidence, Judge Chell found the Division satisfied all

four prongs of the best interests test and terminated defendant's

parental rights.

On appeal, defendant argues: (1) the trial judge failed to

consider alternatives to the termination of his parental rights;

(2) the Division failed to make reasonable efforts toward

reunification while defendant was incarcerated; (3) the trial

judge erred in finding termination would not do more harm than

good; (4) the Division failed to prove defendant could not become

a fit parent in the foreseeable future; and (5) the Division failed

to prove that defendant's relationship with Lucas caused harm or

would continue to cause harm.

Our review of a decision terminating parental rights is

limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 278 (2007). "Because of the family courts' special

jurisdiction and expertise in family matters, appellate courts

should accord deference to family court factfinding." Cesare v.

Cesare, 154 N.J. 394, 413 (1998). Although we are not bound by

the trial court's legal conclusions, N.J. Div. of Youth & Family

Servs. v. I.S., 202 N.J. 145, 183 (2010), we will affirm a Family

Part's decision to terminate parental rights when substantial,

credible evidence in the record supports the court's findings.

10 A-0480-17T1
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008). When considering termination of parental rights, the

court focuses on the "best interests" of the child. In re

Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

In striking a balance between a parent's constitutional

rights and the child's fundamental needs, courts employ a four-

prong test, which requires 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 [or her] 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.

[N.J.S.A. 30:4C-15.1(a).]

These four criteria "are neither discrete nor separate, but are

interrelated and overlap." N.J. Div. of Youth & Family Servs. v.

L.J.D., 428 N.J. Super. 451, 479 (App. Div. 2012). Together they

11 A-0480-17T1
"provide a comprehensive standard that identifies a child's best

interests." K.H.O., 161 N.J. at 348.

Defendant argues that the judge failed to consider

alternative arrangements in lieu of terminating his parental

rights. Defendant contends the judge should have considered

permanent placement with the maternal grandparents but without

termination of his parental rights.

Having reviewed the record, we find that Judge Chell

considered the testimony presented as to potential alternatives

to termination. Defendant's expert proffered the potential for

shared custody of Lucas between the maternal grandparents and

defendant. However, Drs. Loving and Dihoff noted such a custody

arrangement would be confusing and difficult for Lucas.

On appeal, defendant suggests the judge failed to consider

leaving custody of Lucas with the maternal grandparents but

maintaining his parental rights. However, defendant offered no

testimony that such an arrangement was in Lucas's best interests.

Indeed, defendant failed to present any testimony for the judge

to consider and evaluate as an alternative to termination of his

parental rights.3

3
We note that the maternal grandparents seek to adopt Lucas.
Absent termination of defendant's parental rights, Lucas will be
unable to achieve permanency and stability through adoption by his

12 A-0480-17T1
 Based on our review of the record, we affirm for the reasons

expressed by Judge Chell in his comprehensive and well-reasoned

written decision, dated July 28, 2017, reviewing the testimony and

evidence and finding the Division proved all four prongs of the

best interests test, N.J.S.A. 30:4C-15.1(a), to support

termination of defendant's parental rights. The judge's factual

findings are supported by substantial credible evidence in the

record. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.

527, 552 (2014). Defendant's arguments are without sufficient

merit to warrant further discussion. R. 2:11-(e)(1)(e).

Affirmed.

grandparents. See K.H.O., 161 N.J. at 357 (finding that "the
child's need for permanency and stability emerges as a central
factor" in guardianship and adoption cases).

13 A-0480-17T1