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NOT FOR PUBLICATION WITHOUT THE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
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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
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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