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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2507-13T3
A-2508-13T3
A-2509-13T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
R.V.R, D.G., C.A.M.,
Defendants-Appellants,
and
A.W.,
Defendant.
_____________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF S.R., S.H.M.G. and A-B.N.G.,
Minors.
_____________________________________
Submitted December 9, 2014 – Decided December 26, 2014
Before Judges Reisner, Koblitz and Haas.
On appeal from Superior Court, Chancery
Division, Family Part, Essex County, Docket
No. FG-07-81-13.
Joseph E. Krakora, Public Defender, attorney
for appellant R.V.R. (Gilbert G. Miller,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant D.G. (Deric Wu, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for
appellant
C.A.M.
(Elizabeth
Burke,
Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney
for
respondent
(Andrea
M.
Silkowitz, Assistant Attorney General, of
counsel; Lindsay Wight, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for S.R., S.H.M.G. and
A-B.N.G. (Lisa M. Black, Designated Counsel,
on the brief).
PER CURIAM
In
this
consolidated
opinion,
we
review
the
appeals
of
three parents from the January 17, 2014 order terminating their
parental rights.
Defendant D.G. (Debby1) is the mother of all
three children: S.R. (Sandra), born in 1999, whose father is
defendant
R.V.R.
(Rich)2;
S.M.
(Susan),
born
in
2003,
whose
father is defendant C.A.M. (Craig) and A-B.N.G. (Andy), born in
1
We use fictitious names for the parties to preserve their
confidentiality while making the opinion easier to follow.
2
Debby and Rich are also the parents of R.R., Jr., a son, born
in 2000, who lives at a residential facility and was not a party
in this trial.
2
A-2507-13T3
2004, whose father is A.W.3
After a thorough review of the
record, we affirm.
At
the
time
of
trial,
the
family
had
a
fourteen-year
history with the New Jersey Division of Child Protection and
Permanency (Division)4.
In 1999, shortly after Sandra's birth,
the Division first became involved when it was contacted with an
allegation that the baby slept on a dirty mattress on the floor
in a "nasty" apartment where there were rats as well as "trash
everywhere."
Neglect was not substantiated, but services were
nonetheless provided.
The
following
The case was closed in November 2000.
year,
the
Division
received
that the family had no heat or hot water.
an
allegation
Neglect was again not
substantiated, but once again services were provided and the
case closed.
In 2003, after Susan's birth, the Division was
again called, this time by a "community agency" that reported,
"Mom called . . . to say that she does not want her two older
children.
She has to leave the building because it is a senior
citizens building."
Services were again provided.
3
A default was entered against A.W., who did not participate in
the litigation.
His parental rights were terminated after
trial. He does not appeal.
4
Previously named the Division of Youth and Family Services
(DYFS).
3
A-2507-13T3
In 2005, approximately eight months after Andy's birth, an
anonymous caller told the Division that Debby was seen using
cocaine and marijuana with the children present.
The caller
stated that the house was "filthy," with garbage, dirty dishes,
roaches
and
clothes
all
over
the
house.
The
Division
investigated and reported that the apartment was filthy, but the
children "did not appear to be at risk of immediate harm."
Later
that
same
community agency
year,
the
Division
was
contacted
by
a
reporting that Rich had called to say that
Debby abused her children and that he had witnessed her slamming
her four-year-old son, R.R. Jr., on the floor.
did
not
substantiate
abuse.
That
same
An investigation
day,
the
Division
received an additional referral from a family friend who said
that Debby had left the children with him for three days and had
not returned.
The report was again deemed unfounded.
In 2006, Andy, then thirteen months old, was admitted to
the hospital.
The Division was contacted when it was learned
that Debby had failed to keep two medical appointments for her
son.
Andy had only seen a doctor once since he was born.
The
allegation of medical neglect of Andy was substantiated.
The family was provided services including referrals for
parenting
furniture,
skills,
financial
assessments
and
assistance,
a
home
transportation.
4
health
Due
to
aide,
the
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continuing risk to the children, they were removed in February
2006 and placed with a maternal cousin.
children were "sporadic."
Debby's visits to her
In August 2006, the Division noted
that Debby had not completed her parenting classes and had been
discharged from the Final Stop therapeutic supervised visitation
program because of her excessive absences.
In 2007, the children were removed from the cousin's home
because
separate
of
unsanitary
resource
their siblings.
living
homes,
conditions
where
the
and
children
placed
reported
in
two
missing
Reunification with Debby was ordered to begin
in February 2009 with a home health aide in place.
In February 2009, after her return home, Susan reported
that she saw her parents fighting, and that her mother bit her
father.5
The
Division
report
states
that
the
family
has
a
history of domestic violence and that both parents had attended
anger management classes in the past.
On May 21, 2009, a urine
screen requested by the Division revealed that both Debby and
Rich tested positive for marijuana; Craig tested positive for
marijuana, cocaine and morphine.
In January 2010, R.R., Jr. reported that his mother was
smoking marijuana in the house.
Debby was ordered to attend
5
"Father" appears to be Rich and not her biological father,
Craig.
5
A-2507-13T3
domestic violence counseling and the Division was ordered to
obtain transitional housing to relocate Debby and the children
to a safer environment.
In January 2010, the Division received a referral stating
that Rich had hit Debby in the face while in the presence of
their
children.
The
home
health
trying to separate the parents.
aide
was
also
struck
while
The referent stated that Debby
was not letting the home aid into her home or paying her rent or
utility bills.
Rich was observed to be "under the influence."
Rich was substantiated for child neglect.
The Division's contact sheet dated January 26, 2010 refers
to Debby's "positive urine screen."
On December 6, 2010, a home
visit revealed that the there was no refrigerator or beds for
the children.
Rich
has
been
including
robbery,
dangerous
substance
incarcerated
possession
(CDS)
and
five
of
times
heroin
attempted
parole and was returned to prison.
for
and
a
theft.
offenses
controlled
He
violated
In June 2011, Rich was
convicted of aggravated sexual assault and resisting arrest and
sentenced to five years in prison with an 85% percent parole
disqualifier
pursuant
N.J.S.A. 2C:43-7.2.
to
the
No
Early
Release
Act
(NERA),
He was also subject to the Megan's Law
reporting requirements.
N.J.S.A. 2C:7-1 to -11.
6
The victim was
A-2507-13T3
a close friend of Debby's and the assault took place in Debby's
home, following an evening of drinking.
In June 2011, the Division received an anonymous referral
that stated that the children were seen walking around "with
nowhere to go" and looked hungry and unwashed. It was reported
that the family was homeless because "a padlock had been placed
on the family's home" when they were evicted.
When reached by
telephone, Debby said that she and the children were living in
Connecticut.
The following month, Debby did not appear in family court
for a scheduled compliance review.
The Division made attempts
at
several
home
visits
unsuccessful
in
over
the
finding
next
either
Debby
or
months,
her
but
was
children.
In
September 2011, the Division contacted the school district in
Connecticut where Debby said her children attended: no school by
the name given by Debby existed.
Connecticut Children Services
was unable to locate the family.
Later that month, the Division
requested that a hold be put on Debby's temporary assistance
benefits until she and the children were located.
Debby
contacted
the
Division
benefits on October 4, 2011.
her
address,
Pennsylvania.
but
stated
concerning
her
suspended
She would not give the Division
that
she
was
spending
time
in
A month later, the caseworker spoke with Debby by
7
A-2507-13T3
telephone and was told that Debby was now residing in New Jersey
and that her children were enrolled in school in Elizabeth and
were
living
with
Debby's
mother.
A
Division
investigation
revealed that the children had not begun school that year, "were
wearing
dirty
clothes
and
begging
for
food."
neglect was substantiated by the Division.
Educational
The judge ordered
the children's second removal, writing:
[T]he natural mother has a long history with
DYFS including continuous litigation since
January 2006[.] [A] warrant was issued for
[Debby] in September 26, 2011[6], the children
and [Debby] were located today and the
children report that they have not been in
school since the summer. [Debby] has ongoing
housing issues, has been noncompliant with
the orders of the court and the [c]ourt
finds that she has not been honest to DYFS
or the court. The fathers are currently
incarcerated.
The children, including R.R., Jr., were placed together.
R.R., Jr. was removed from the initial foster care placement in
January
2012,
and
was
ultimately
placed
in
a
residential
treatment center where he remained at the time of trial.
Debby
was
ordered
to
receive
counseling,
screening, visitation and parenting classes.
random
drug
In March 2012 the
6
The warrant was issued because Debby had not appeared in court
as required on several occasions, had been noncompliant with
services and had failed to keep the Division informed of her and
the children's whereabouts.
8
A-2507-13T3
Division caseworker reported that Debby was noncompliant: she
missed two counseling intakes, did not comply with drug testing,
was terminated from Reunity House therapeutic visitation program
and "actually went missing on the case."
In October 2012, Debby informed the Division that she had
recently moved to Massachusetts.
In a permanency order dated
October 18, 2012, the court noted that Debby had not completed
requisite services and that none of the natural fathers were
available to plan for their children: Rich was incarcerated and
Craig was recently released from prison
himself as a caretaker.
and had not offered
As of December 2012, Debby was still
"missing."
The
Division
unsuccessfully
pursued
several
leads
for
placement of the children with extended family. Debby's brother
was eliminated as a potential resource because he declined to be
fingerprinted. Rich's sisters, Di. and De., were also eliminated
as placement resources: Di. because she was ambivalent about her
willingness to accept the children and failed to follow up on
the
prerequisite
fingerprinted;
told
the
and
Division
procedures,
De.
if
who,
she
including
despite
was
failing
repeated
willing
to
to
requests,
take
the
Craig's mother withdrew as a possible placement.
be
never
children.
Debby had
suggested C., her stepsister who resided in Massachusetts, as a
9
A-2507-13T3
possible
placement
resource.
However,
C.,
who
was
only
interested in taking two children, failed to complete the home
study
process
through
Massachusetts.
Rule-out
letters
were
subsequently sent to all of the siblings.
The foster parents with whom the three children resided
wanted to adopt them, until the children visited their mother at
the beginning of 2013.
After the visit, the children told
their foster parents that they wanted to live with their mother.
On January 31, 2013, the school social worker told the Division
that since Andy renewed visits with his mother, he had tried to
stab himself with a pencil and appeared very anxious.
Debby was permitted weekly visits, but saw her children
only twice in January.
On February 12, 2013, she was terminated
from therapeutic visits because of excessive absences.
After
that date, Debby did not visit her children or participate with
services.
On June 20, 2013, drug screens were administered to each of
the
three
defendants.
Debby
tested
positive
for
marijuana,
benzodiazepines and barbiturates.
Craig was "unable to produce"
at
tested
that
time,
but
had
recently
positive
for
various
drugs.
Prior to the first day of trial, Debby was arrested for
aggravated assault and was held in jail on $50,000 bail.
10
She
A-2507-13T3
was brought from the jail for trial.
Before the third day of
trial, Debby was released from jail and did not attend the last
three days of the trial.
trial.
Rich,
who
was
Craig attended only three days of
serving
a
State
prison
sentence,
was
brought to court every trial day.
Dr. Frank Dyer, the Division expert psychologist who has
been involved in child welfare cases for thirty-two years, noted
in his testimony Debby's "history of neglecting her children,
instances
of
transporting
Division
abuse
the
about
that
children
their
appear
out
of
attending
in
the
state,
Division's
[and]
school."
He
records,
lying
to
stated
the
that
psychological testing indicated she was functionally illiterate.
She tested at the level of an eight-year-old on the intelligence
test.
Psychological
"significant
visual
tests
motor
also
indicated
problem,
that
consistent
Debby
with
had
someone
functioning significantly below average intellectually."
concluded
that
Debby's
"lack
of
basic
literacy[,]"
a
Dyer
"problems
with impulse control [and] judgment [as well as] overuse of
denial and vulnerability to regression[]" meant that she
does not have the capacity to supply on a
consistent basis the degree of structure,
nurturance, the joint supervision, material
comforts and other things that children need
for an adequate environment in which to
develop and grow the sense of security and
with a sense that they are loved and valued.
11
A-2507-13T3
All of which is
personality growth.
conducive
to
healthy
Dyer noted that the children and Debby had already had one
failed reunification which was a predictor of a negative outcome
for a second reunification.
In his long experience working with
families involved with the Division, he had never witnessed a
successful second reunification.
would
experience
a
loss
if
He opined that the children
Debby's
parental
rights
were
terminated, but that loss could be mitigated if the children
were given appropriate services.
Dyer testified that Rich had a serious alcohol problem and
a secondary problem with drugs.
Dyer stated that Rich also had
a "prominent antisocial dimension [that was] not likely to be
significantly modified by any kind of counseling . . . ."
Rich
began exhibiting antisocial behavior when he stabbed a little
girl in the eye with a pair of scissors in kindergarten.
He had
been placed in a residential treatment facility for years as a
child.
As an adult, he had been arrested for assaults, armed
robbery and drug offenses and had fifteen felony convictions.
Dyer found that Sandra's relationship with her father was "based
on fantasy because [Rich] has not been realistically available
to her because of his long periods of incarceration."
stated
that
if
the
relationship
12
were
completely
Dyer
severed,
A-2507-13T3
however,
Sandra
"would
suffer
a
very
painful
and
probably
somewhat disorganizing loss."
Dyer agreed that adoption is the "correct goal for these
children."
teenagers
He
testified,
have
"I've
successfully
seen
cases
adjusted
to
thought
keeping
the
three
children
which
adoptive
subsequent to termination of parental rights."
he
in
older
homes,
Dyer stated that
together
would
be
testified
on
desirable, if possible.
Defense
psychologist
Dr.
Gerard
Figurelli
behalf of Rich about the psychological and bonding assessments
he had performed.
Rich
could
abuse
benefit
treatment,
In contrast to Dyer, Figurelli stated that
from
mental
health
rehabilitation
parenting skills training.
to
counseling,
reduce
substance
recidivism
and
He noted that although Rich had
received substance abuse treatment in the past, substance abuse
was involved in the offending behavior for which he was now
incarcerated.
Figurelli testified that Rich and Sandra had "a positive
bond" that Sandra "benefits from and will continue to benefit
from
.
.
relationship
[Sandra's]
.
."
He
"occupies
testified
a
psychological
that
significant
life[,]"
the
and
and
13
positive
that
relationship would do more harm than good.
father-daughter
place
severing
in
that
Figurelli agreed
A-2507-13T3
with Dr. Dyer's assessment, however, that Rich was not in a
position to parent in the foreseeable future.
Psychologist Dr. Leslie Williams testified on behalf of the
Division about Craig's psychological evaluation.
He explained
that he did not perform a bonding evaluation because at the time
of his examination in May 2013, Craig had only seen his nineyear-old daughter once in four years.
Given the lack of contact
and consistency, Williams believed no emotional bond would have
formed.
Williams chronicled Craig's lengthy criminal history,
his ongoing substance abuse problems, and the psychiatric issues
for which Craig had received treatment.
Williams concluded that
Craig "still has fairly significant psychiatric symptoms that
would interfere with his ability to relate to others, let alone
a dependent child."
Theresa Dawson, an adoption specialist, testified about the
Division's adoption procedures.
of
families
willing
to
adopt
Dawson testified that the pool
becomes
larger
after
parental
rights have been terminated because the Division can look beyond
New
Jersey
for
potential
homes.
Dawson
noted
that
children's first choice was to be with their mother.
the
Their
second choice was to remain together if they had to be adopted.
She stated that it was more difficult to place three children
together, but that there are families who want sibling groups.
14
A-2507-13T3
Dawson estimated that it would take "maybe fifteen months" to
find an acceptable home for these children.
In an oral opinion, the judge found that the Division had
proved
by
clear
and
convincing
evidence
the
four
prongs
necessary to terminate the parental rights of all three parents.
N.J.S.A. 30:4C-15.1(a).
I
Before
appeal,
we
terminating
discussing
briefly
the
issues
review
parental
the
rights
raised
by
the
well-recognized
and
our
role
on
parents
criteria
appeal.
on
for
"[A]
parent's right to raise a child and maintain a relationship with
that child is constitutionally protected under the federal and
state Constitutions."
N.J. Div. of Youth & Family Servs. v.
A.R., 405 N.J. Super. 418, 434 (App. Div. 2009) (citations and
internal quotation marks omitted).
Those rights, however, "are
not absolute, and 'must be balanced against the State's parens
patriae
responsibility
to
protect
the
welfare
of
children.'"
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397
(2009) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191
N.J. 596, 605 (2007)).
"The
balance
between
parental
rights
and
the
State's
interest in the welfare of children is achieved through the best
interests of the child standard."
In re Guardianship of K.H.O.,
15
A-2507-13T3
161 N.J. 337, 347 (1999).
termination
each
of
is
the
not
Pursuant to N.J.S.A. 30:4C-15.1(a),
appropriate
following
four
unless
the
statutory
Division
factors
by
satisfies
clear
and
convincing evidence:
(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;
(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 are "not discrete and separate; they relate
to
and
overlap
with
one
another
to
provide
a
comprehensive
standard that identifies a child's best interests."
K.H.O.,
supra, 161 N.J. at 348.
The family court possesses special expertise in the field
and
thus
appellate
factfinding.
courts
should
accord
deference
to
its
N.J. Div. of Youth & Family Services v. R.G., 217
16
A-2507-13T3
N.J. 527, 553 (2014).
The family court "has the opportunity to
make first-hand credibility judgments about the witnesses who
appear on the stand; it has a 'feel of the case' that can never
be realized by a review of the cold record."
&
Family
omitted).
court's
evidence.
Servs.
Our
v.
task
decision
is
E.P.,
196
is
determine
to
N.J.
supported
by
88,
N.J. Div. of Youth
104
only
(2006)
whether
substantial
(citation
the
and
family
credible
N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 447 (2012).
Each of the three parents alleges that the Division failed
to satisfy the statutory requirements necessary to terminate his
or her parental rights and therefore the trial judge's order
should be reversed.
The law guardian for the minor children
supports the termination of Craig's parental rights to Susan,
but states that the Division failed to meet its burden as to
Debby and Rich.7
Because the Division appropriately does not
move to terminate one parent's rights when the other parent is
fit, N.J. Div. of Youth and Family Servs. v. D.S.H., 425 N.J.
Super. 228, 243 (App. Div. 2012),
we discuss Debby's situation
7
When children are of an age to communicate their wishes, the
law guardian is required to advocate for the children's
expressed legal position. See Div. of Youth & Family Servs. v.
Robert M., 347 N.J. Super. 44, 70 (App. Div.)(holding that law
guardians must advocate for the expressed wishes of their
clients), certif. denied, 174 N.J. 39 (2002).
17
A-2507-13T3
first.
If
Debby's
parental
rights
should
not
have
been
terminated, then the fathers would have reason to argue that it
would be harmful to the children to leave them with only one
legal parent.
II
Dr. Dyer stated that all three children are emotionally
attached to their mother.
He observed that Sandra and Andy
became "parentified" towards Debby, comforting her because of
her sadness at their removal.
Dyer opined, however, that the
children would be unable to rely on Debby for nurturing and
guidance in the future.
In his report, Dyer wrote:
[Debby] has no concept of the impact that
her failure to visit the children for
approximately a quarter of a year has had on
them.
She was successful in engaging the
children's
sympathies
by
crying,
rationalizing her absence as a necessary
getaway to clear her mind and promising the
children that she would never leave again
and that she would fight to get them back.
In actuality, [Debby's] conduct has simply
had the effect of tantalizing these children
with the prospect of a return to her and
then repeatedly disappointing them, sending
them the overt message that she is a caring
and committed mother who left them in order
to better herself for their good, but
additionally sending the covert message of
rejection.
Because all three children wished to be returned to Debby,
Dyer opined that if her rights were terminated, "it would be
important
for
them
to
have
some
18
kind
of
therapy
or
grief
A-2507-13T3
counseling in order to cope with that loss."
Dyer testified
that although therapy could mitigate the impact, it would not
entirely overcome the loss.
Dyer
opined
that,
on
the
other
hand,
another
failed
reunification would be a "devastating blow" to the children.
Dyer also indicated that no services had "a realistic promise of
bringing [Debby] to the point of adequate parenting capacity."
He testified that reunification was not "a realistic possibility
that has a likelihood of success attached to it."
Debby argues that the Division has not satisfied the fourth
prong of N.J.S.A. 30:4C-15.1(a) because "in the absence of an
adoptive home and the clear harm that severance of the family's
bond would cause the children, termination of parental rights
would do more harm than good."
The Division does not always
have
the
an
adoptive
home
prior
to
termination
of
parental
rights. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591,
611
(1986)
("[T]here
termination
of
parental
plan.").
As
Dawson,
testified,
the
will
rights
the
termination
of
be
circumstances
must
precede
Division
parental
the
adoption
rights
when
the
permanency
specialist,
opens
up
more
avenues to seek an adoptive home.
Both Debby and the law guardian cite to E.P., supra, 196
N.J. 88, in support of their position.
19
There, the trial judge
A-2507-13T3
terminated the parental rights of a drug-addicted mother with
psychological
problems
and
an
"unstable
lifestyle"
thirteen-year-old emotionally fragile daughter.
to
her
Id. at 92.
At
the time of the trial judge's ruling, mother and child had not
lived together for seven years.
By the time our Supreme Court
reviewed the case, the child had been in twelve foster homes in
which she had been abused on more than one occasion, and had
threatened
and
attempted
suicide
in
reaction
attempts to sever the mother's parental rights.
to
previous
The Court noted
that while the child was in foster care, the mother had "visited
[the child] as often as the court permitted . . . [,]" and had
made attempts to deal with her drug problem.
ended
her
"nomadic
existence"
and
Id. at 93-94. She
successfully
parenting skill classes and secured a job.
completed
Id. at 94.
There
was "no prospect of the daughter's adoption on the horizon." Id.
at 92.
In remanding the case, the Court stated, "In the unique
circumstance
of
this
case,
a
parent-child
relationship
that
continued to provide emotional sustenance to the child should
not
have
been
severed
permanent adoptive home."
based
on
the
unlikely
promise
of
a
Id. at 114.
Similar to the situation in E.P., the children and Debby
have a bond.
Unlike the mother in E.P., however, Debby has not
visited her children whenever possible and has not completed
20
A-2507-13T3
recommended services.
Because Debby provided neither proof of
any income nor a lease, there is no evidence of her employment
or that she has a suitable home for the children.
There is
nothing in the record to suggest that these children are unable
to form a new bond, as evidenced by two long-term placements in
two
different
foster
homes.
We
affirm
the
trial
judge's
determination that the termination of Debby's parental rights
would not do more harm than good for the three children.
The
judge relied on substantial and credible evidence presented by
the
Division,
compliance
secure
with
including
services
environment
for
Debby's
and
her
lengthy
history
failure
to
provide
children,
as
well
of
a
as
non-
safe
Dr.
and
Dyer's
thoughtful and comprehensive expert opinion.
III
Rich, Sandra's father, argues that the trial judge did not
make sufficient findings as to all four prongs, while the law
guardian
argues
that
the
Division
did
not
prove
the
fourth
prong, that termination of Rich's parental rights will not do
more harm than good.
"When the condition or behavior of a parent causes a risk
of harm, such as impermanence of the child's home and living
conditions,
and
the
parent
is
unwilling
or
incapable
of
obtaining appropriate treatment for that condition, the first
21
A-2507-13T3
subpart of the statute has been proven." N.J. Div. of Youth &
Family Services v. H.R., 431 N.J. Super. 212, 223-24 (App. Div.
2013).
N.J.S.A.
30:4C-15.1(a)(1).
Similarly,
prong
two
is
satisfied when a parent is unable or unwilling to provide a safe
and stable home for the child, N.J.S.A. 30:4C-15.1(a)(2).
See
K.H.O., supra, 161 N.J. at 348 (stating that the four prongs are
not discrete, but overlap with each other).
The
trial
judge
stated
that
Rich's
current
conviction
carries a Megan's Law reporting provision that will make it
difficult for him to find employment.
Pursuant to statute, Rich
also could not have visitation or custody of Sandra without a
judicial finding by clear and convincing evidence that it is in
the best interests of Sandra.
noted
that
Rich
"abandoned
N.J.S.A. 9:2-4.1.
these
children
by
The judge also
his
repeated
criminal actions, his repeated incarcerations, [and] his failure
to show any stability for this child."
has
been
Moreover,
absent
Rich
for
was
significant
involved
Dyer noted that Rich
portions
with
drug
of
abuse
Sandra's
and
life.
domestic
violence when he was part of Sandra's day-to-day life.
Dyer
found Rich to have a "prominent antisocial dimension" that was
not likely to respond to treatment.
Finally, the judge noted
that upon his release, Rich does not plan to provide a home for
Sandra.
Even Rich's expert, Figurelli, whom the judge did not
22
A-2507-13T3
find as credible as Dyer, agreed with Dyer that Rich was not in
a position to parent in the foreseeable future.
Rich
argues
that
"incarceration
alone—without
particularized evidence of how a parent's incarceration affects
each
prong
parental
.
.
.
rights."
is
an
R.G.,
insufficient
supra,
217
basis
N.J.
at
for
556.
terminating
However,
"'[i]ncarceration is . . . probative of whether the parent is
incapable of properly caring for . . . or has abandoned the
child.'"
Id. at 554-55 (quoting In re Adoption of Children by
L.A.S., 134 N.J. 127, 136 (1993)).
In L.A.S., supra, 134 N.J.at
143, our Supreme Court found that incarceration is a relevant
factor to consider in termination cases, but "whether parental
rights should be terminated must be based on a broad inquiry
into
all
the
criminality,
circumstances
and
must
bearing
include
on
an
incarceration
assessment
of
and
their
significance in relation to abandonment or parental unfitness."
Factors for a court to consider include a parent's performance
before incarceration, the extent to which the children were able
to rely on him as a parent, and the effort taken to remain in
contact with his children. Id. at 143-44.
See R.G., supra, 217
N.J. at 556.
When Rich was released from incarceration in the past, he
reoffended
and
has
been
incarcerated
23
for
multiple
protracted
A-2507-13T3
periods.
As
noted,
his
behavior
when
with
Sandra
included
exposure to addiction and domestic violence.
With regard to the third prong, N.J.S.A. 30:4C-15.1(a)(3),
Rich argues that the Division failed to provide him services
that
would
parenting
have
when
assisted
it
failed
in
his
to
transition
assist
his
to
sister,
custodial
Di.,
"in
establishing herself as a viable custodian to his children."
Rich also argues that the Division failed to provide evidence
that
it
had
given
the
foster
parents
sufficient
information
concerning kinship legal guardianship (KLG). N.J.S.A. 3B:12A-1
to -7.
Di. was ruled out as a caretaker for failure to cooperate
with
the
Division
approval
procedures
and
her
expressed
ambivalence about taking care of the children.
At trial, none of the parents expressed any doubt about the
Division's explanation of KLG to the foster parents, nor did
defendants question any of the Division workers about it.
we
do
not
consider
that
issue.
An
appellate
court
Thus,
"'will
decline to consider questions or issues not properly presented
to the trial court when an opportunity for such a presentation
[was] available unless the questions so raised on appeal go to
the jurisdiction of the trial court or concern matters of great
public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009)
24
A-2507-13T3
(quoting
Nieder
v.
Royal
Indem.
Ins.
Co.,
62
N.J.
229,
234
(1973) (citation and internal quotation marks omitted)).
Dyer's
expert
psychological
testimony
as
well
as
Rich's
behavior support the judge's finding by clear and convincing
evidence that termination of Rich's parental rights would not do
more harm than good to Sandra.
trial
judge
based
his
N.J.S.A. 30:4C-15.1(a)(4).
decision
to
terminate
Rich's
The
parental
rights on substantial and credible evidence.
IV
Susan's father, Craig, also appeals. The law guardian does
not
object
to
the
termination
of
Craig's
parental
rights.
Although Craig informed Williams during the second evaluation
that he had been seen by a defense bonding expert the prior day,
no such expert testified on behalf of the defense. Williams
opined that Craig had had insufficient contact with Susan for
formation of an emotional bond.
Craig was incarcerated from 2009 to 2012 and had no contact
with Susan since then with the exception of two visits in 2013.
He argues on appeal that he was not provided visits by the
Division. Craig was permitted visits with Susan, but he had to
comply with a drug screen before each visit.
testified that Craig did not comply
The caseworker
with the drug screening
process.
25
A-2507-13T3
Craig
has
an
extremely
lengthy
criminal
record
and
continued to use illegal drugs even while he was enrolled in an
out-patient drug program.
The Division referred Craig to three
in-patient programs. Because he had such a large amount of drugs
in his system, Craig was not admitted to any of them. Craig
completely
failed
to
take
advantage
of
any
of
the
drug
rehabilitation services offered to him by the Division. As the
caseworker noted in July 2013, despite services, Craig was still
actively using drugs and did not have a stable residence or
employment.
Craig's
argument
that
the
Division
failed
to
present sufficient credible and substantial evidence to prove
all four prongs necessary for the termination of his parental
rights is without sufficient merit to require further discussion
in light of the ways Craig has failed to protect Susan from harm
or provide for her wellbeing as delineated above.
R. 2:11-
3(1)(e)(E).
As
the
trial
judge
acknowledged,
the
termination
of
defendants' parental rights may result in "some harm" to the
children, but "in the long term, it's the only way that they can
possibly reach . . . [the] stability and permanency [] that they
need
and
desire."
Sadly,
although
these
children
are
emotionally bonded to their mother, she has proven incapable of
taking care of them.
Based on her experience, a Division worker
26
A-2507-13T3
testified
that
there
is
a
good
chance
left
children to remain together in an adoptive home.
the
trial
judge
that
the
children
are
for
the
three
We agree with
entitled
to
that
opportunity.
Affirmed.
27
A-2507-13T3