DCPP VS. D.S., JR. AND C.M., IN THE MATTER OF THE GUARDIANSHIP OF D.A.S. AND D.L.S. (FG-12-0077-18, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2225-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

D.S., JR.,

Defendant-Appellant,

and

C.M.,

Defendant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.A.S.
and D.L.S.,

Minors.
_____________________________

Submitted January 14, 2020 – Decided January 22, 2020

Before Judges Fisher and Rose.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FG-12-0077-18.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Steven Edward Miklosey, Designated
Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Sue Arons, Assistant Attorney
General, of counsel; Alexander J. Cronin, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; James Joseph Gross,
Designated Counsel, on the brief).

PER CURIAM

Defendant D.S., Jr., appeals a judgment terminating his parental rights to

two children: D.A.S. (born in February 2016) and D.L.S. (born in August 2017).

The trial judge rendered that judgment as to both defendant and C.M., the

children's mother, who has not appealed, following a three-day trial. Defendant

did not testify and he called no witnesses.

In examining such a judgment, we start with the established principle that

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). "The rights to conceive and

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to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' [that

are] 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S.

645, 651 (1972) (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., 161 N.J. at 347. The

constitutional right to the parental relationship, however, 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 may be terminated in a child's best interests. N.J.S.A.

30:4C-15.1(a) requires that the Division of Child Protection and Permanency

prove by clear and convincing evidence that the following four prongs favor

termination:

(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

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3
 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., 103 N.J. at 604-11.

Defendant's appeal is directed only at the judge's findings on the second,

third, and fourth statutory prongs. He argues, in three points, that the judge

erred in finding:

I. [DEFENDANT] WAS UNWILLING OR UNABLE
TO ELIMINATE THE HARM FACING HIS
CHILDREN, WHERE HE PARTICIPATED IN
MULTIPLE EVALUATIONS, COMPLETED
SUBSTANCE ABUSE EVALUATIONS AND
TREATMENT, AND MAINTAINED GAINFUL
EMPLOYMENT.

II. [THE DIVISION] PROVIDED REFERRALS FOR
APPROPRIATE SERVICES THAT DIRECTLY
ADDRESSED ALL OF [DEFENDANT'S] ISSUES,
WHERE [THE DIVISION] FAILED TO MAKE A
SINGLE REFERRAL FOR MENTAL HEALTH
SERVICES.

III. THAT TERMINATION OF PARENTAL RIGHTS
WOULD NOT DO MORE HARM THAN GOOD,
WHERE THE TRIAL COURT GAVE INADEQUATE

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 CONSIDERATION TO [DEFENDANT'S] POSITIVE
VISITATION AND BONDING WITH HIS SONS.

Judge Bruce J. Kaplan assessed the evidence and determined that the

Division provided clear and convincing evidence on the first prong. He found

that both parents "have unabated substance abuse issues, both lack appropriate

housing," and that defendant, "while perhaps willing at times, was incapable of

consistent appropriate long-term parenting." The judge rejected defendant's

argument that he did not harm the children – which defendant based on the fact

that they had never been in his custody – because defendant's "actions have

contributed to the children's prolonged stay in resource care, and . . . his

incapacity to provide adequate care and his inconsistent role in their lives is, in

and of itself, causing harm to the children by delaying permanency." Defendant

does not challenge the judge's first prong findings.

As to the second prong, Judge Kaplan found it evident that the parents

were incapable of "ceas[ing] to inflict harm" on the children. He observed,

among other things, that "three years after [the older child's] removal . . . the

same circumstances exist as were present when this case began," and that neither

parent "has made genuine efforts to remedy the circumstances that caused" the

children's removal. Neither parent, the judge found, had acquired appropriate

housing, and defendant "has not consistently refrained from illicit drug use and,

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as evidenced by his recent drug screens, has relapsed." These and the judge's

other findings on the second prong are based on credible and substantial

evidence and require our deference. N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998).

As for the third prong, defendant argues that the Division failed to make

reasonable efforts to provide services to facilitate reunification because it did

not recommend mental health services. The judge recognized that the Division

"had concerns about [defendant's] mental status and referred him to at least three

psychologists for . . . evaluations," but the judge also determined, in finding the

Division's experts credible, that:

None of these experts identified [defendant] as having
mental health issues that could be addressed with
mental health care or medication. Specifically, Dr.
Wells found that [defendant] displays indicia of a
mixed personality disorder and that there are no types
of psychiatric treatment or medication that can treat
personality disorders. Dr. Katz found that [defendant]
presented with problems in thought processing but
indicated that [defendant] had no further
symptomatology to suggest additional mental health
issues that would warrant treatment with medication.
In fact, [defendant] has denied to multiple evaluators
that he has any symptoms or concerns about his mental
health. Both Dr. Wells and Dr. Katz indicated that
parenting classes would have been sufficient to address
[defendant's] parenting deficiencies, if he had properly
engaged in them and been willing to make the changes
that were recommended. Further, . . . the Division did

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 in fact refer [defendant] to a dual treatment program at
Rutgers UBHC, which provided services relating to
both substance abuse and mental health[,] [but
defendant] never made an intake appointment with
UBHC.

These findings, and the judge's other findings on the third prong, are entitled to

our deference. F.M., 211 N.J. at 448-49.

As for the fourth prong, Judge Kaplan found the children "established a

stable and secure bond with their resource parents, who wish[] to adopt them,

and the severance of those bonds would cause severe harm." On the other hand,

the judge credited Dr. Katz's view of defendant's relationship with the children

as a "trauma bond": "the children recognize [defendant] as 'daddy,' [but] his

inconsistency in his visits and his demeanor during [visitation] has caused stress

for the children." In assessing these circumstances and the overall body of

credible evidence, the judge concluded that termination would not do more harm

than good. This is another finding that commands our deference. Ibid.

After close examination of the record in light of defendant's arguments

and the judge's findings, we find no merit in defendant's arguments and affirm

substantially for the reasons set forth by Judge Kaplan in his comprehensive and

well-reasoned ninety-two page written decision.

Affirmed.

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