DCPP VS. E.L.B. AND S.E.H., IN THE MATTER OF THE GUARDIANSHIP OF L.J.B. (FG-01-0032-18, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-4434-17T2

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

E.L.B.,

Defendant-Appellant,

and

S.E.H.,

Defendant.

IN THE MATTER OF THE

GUARDIANSHIP OF L.J.B.,

a Minor.

Submitted February 11, 2019 – Decided February 26, 2019

Before Judges Fasciale, Gooden Brown and Rose.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Atlantic County,

Docket No. FG-01-0032-18.

Joseph E. Krakora, Public Defender, attorney for

appellant (Victor E. Ramos, Assistant Deputy Public

Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for

respondent (Melissa H. Raksa, Assistant Attorney

General, of counsel; Kimberly S. Dinenberg, Deputy

Attorney General, on the brief.)

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor (Joseph H. Ruiz, Designated

Counsel, on the brief).

PER CURIAM

Defendant, E.L.B., 1 appeals from a May 16, 2018 Family Part judgment

terminating his parental rights to his son, L.J.B., born in October 2016. 2

Defendant contends the Division of Child Protection and Permanency (Division)

failed to prove the first three prongs of N.J.S.A. 30:4C-15.1(a) by clear and

1

We use initials to identify the parties and to preserve the confidentiality of

these proceedings. R. 1:38-3(d)(12).

2

The judgment also terminated the parental rights of L.J.B.'s biological mother,

S.E.H., pursuant to a voluntary identified surrender executed prior to

commencement of the guardianship trial. S.E.H. is not a party to this appeal.

Defendant's older biological child, G.B., is in the custody of his biological

mother and is not a party to this appeal.

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convincing evidence. The Law Guardian joins the Division in supporting the

judgment.

In a comprehensive oral decision, Judge W. Todd Miller found the

Division satisfied the four-prong test by clear and convincing evidence, and held

that termination was in the child's best interests. In re Guardianship of K.H.O.,

161 N.J. 337, 347-48 (1999). Based on our review of the record and applicable

law, we are satisfied the evidence in favor of the guardianship petition

adequately supports the termination of defendant's parental rights. See N.J. Div.

of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding that a

reviewing court should uphold the factual findings regarding the termination of

parental rights if they are supported by substantial and credible evidence in the

record as a whole). Accordingly, we affirm.

I.

The guardianship trial spanned two successive days in May 2018. The

Division moved into evidence voluminous documents, and presented testimony

from a caseworker and Alan J. Lee, Psy.D., a licensed psychologist. Defendant

did not testify, but moved into evidence two documents: the termination

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3

summary of his visitation services program, and a written stipulation that he was

convicted of a burglary offense. 3

The evidence adduced at the trial is set forth at length in Judge Miller's

opinion and need not be repeated in the same level of detail here. Instead, we

incorporate by reference the judge's thorough factual findings and summarize

the most significant evidence to lend context to the judge's legal conclusions.

The Division first became involved with the family when the hospital

reported S.E.H. tested positive for heroin, opiates, and methadone, and had

given birth to L.J.B. the previous day. L.J.B. was born prematurely, weighing

less than four pounds, and tested positive for cocaine and opiates. S.E.H. told

the Division that she and defendant used cocaine and heroin together, but sought

substance abuse treatment after S.E.H. became pregnant. Diagnosed with

neonatal abstinence syndrome, L.J.B. was admitted to the neonatal intensive

care unit (NICU), where he remained for nearly two months.

3

The judgment of conviction was not entered into evidence. At the time of

trial, defendant was imprisoned for the burglary conviction, with an anticipated

first parole eligibility date of October 9, 2020 and a maximum release date of

February 2, 2021.

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Upon L.J.B.'s release from the hospital, the Division executed a Dodd

removal,4 and was granted custody following a hearing on November 29, 2016.

The Division initially placed L.J.B. in a nonrelative foster home, but within two

months, he was placed with S.E.H.'s aunt, D.M., a registered nurse assigned to

the NICU, and D.M.'s paramour, R.S., a retired firefighter. L.J.B. was later

diagnosed with cerebral palsy and failure to thrive, requiring a special diet and

strict feeding regimen. The child remains in the custody of D.M. and R.S., who

want to adopt him. 5

During the ensuing months, the Division provided a multitude of services

to defendant, including a substance abuse evaluation, continued drug treatment,

a psychological evaluation, and supervised visitation. Defendant's

psychological evaluation indicated he needed parenting skills training classes,

individual psychotherapy, family therapy, and substance abuse treatment.

Despite the Division's continued prompting, defendant refused to seek

employment, pending reunification with L.J.B.

4

A Dodd removal is an emergent removal of a minor without a court order

pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of

Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

5

Pursuant to S.E.H.'s identified surrender either D.M., solely, or D.M. and R.S.,

jointly, can adopt L.J.B.

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5

Although defendant availed himself of services, he was unable to

eliminate the risk of harm to L.J.B. By June 2017 he missed one week of

methadone dosages after he and S.E.H. were arrested and incarcerated for a

domestic violence incident. Thereafter, defendant was discharged for non -

compliance from his drug treatment program and visitation services program;

and arrested and incarcerated for the burglary offense, for which he is currently

imprisoned. In December 2017, the Division filed a complaint for guardianship.

Based on the evidence adduced at the guardianship trial, Judge Miller

aptly analyzed each prong of the best interests test, and gave careful attention to

the importance of permanency and stability for L.J.B. In doing so, the judge

made detailed credibility findings, determining the Division's witness was "very

credible." In particular, the judge credited the expert opinion of Dr. Lee, who

performed defendant's psychological evaluation, and bonding evaluations of

L.J.B. with defendant and with D.M. and R.S. Ultimately, the judge concluded

it was in the best interests of L.J.B. to terminate defendant's parental rights. This

appeal followed.

II.

It is well settled that parents have a fundamental right to raise their

children, and that right is constitutionally protected. N.J. Div. of Youth &

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Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "[T]erminations should be

granted sparingly and with great caution because they irretrievably impair

imperative constitutionally-protected liberty interests and scores of centuries of

societal family constructs." N.J. Div. of Youth & Family Servs. v. R.G., 217

N.J. 527, 553 (2014). However, a parent's rights are not absolute. Ibid.

"Because of its parens patriae responsibility, the State may terminate parental

rights if the child is at risk of serious physical or emotional harm or when

necessary to protect the child's best interests." Id. at 553-54 (citing N.J. Div. of

Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)).

In order for the court to terminate parental rights, the Division must satisfy

the following four prongs of the "best interests of the child" test by 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;

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(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.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

The four prongs are not independent of one another. Rather, they "are

interrelated and overlapping[,] . . . designed to identify and assess what may be

necessary to promote and protect the best interests of the child." N.J. Div. of

Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006).

Parental fitness is the crucial issue. K.H.O., 161 N.J. at 348. Determinations of

parental fitness are very fact sensitive and require specific evidence. Ibid.

Ultimately, "the purpose of termination is always to effectuate the best interests

of the child, not the punishment of the parent." Id. at 350.

Our appellate review of Judge Miller's decision is limited. R.G., 217 N.J.

at 552. We are bound to accept his factual findings, as long as they are

"supported by adequate, substantial, and credible evidence." Ibid. (citing N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). Additionally,

we accord his decision particular deference "[b]ecause of the family courts'

special jurisdiction and expertise in family matters," and because the judge was

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uniquely in a position to evaluate the credibility of the witnesses. Cesare v.

Cesare, 154 N.J. 394, 412-13 (1998). However, we review the trial court's legal

interpretations de novo. R.G., 217 N.J. at 552.

Having reviewed the record in light of those legal standards, we conclude

Judge Miller's factual findings are supported by substantial credible evidence in

the record, and the legal conclusions drawn therefrom are indisputable. See N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

Consequently, we are obligated to defer to his findings. Ibid. We therefore

affirm substantially for the reasons expressed by the judge in his well-reasoned

opinion. We add the following comments, addressing those arguments that are

pertinent to this appeal.

A.

We first consider defendant's overlapping arguments that the judge's

findings were insufficient to establish the first and second prongs of the best

interests test. In particular, defendant contends, as a matter of law, that he did

not cause L.J.B. actual harm. Rather, defendant blames S.E.H.'s substance abuse

and lack of prenatal care for L.J.B.'s resulting disabilities. Defendant further

claims he availed himself of services, even while incarcerated, but Dr. Lee did

not consider the records relating to those services.

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Defendant's focus on the "actual harm" component of prong one is

misplaced. It is well settled that the Division need not demonstrate actual harm

to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.

Super. 418, 439-40 (App. Div. 2001). The focus under the first prong is not on

any "single or isolated harm," but rather on "the effect of harms arising from the

parent-child relationship over time on the child's health and development."

K.H.O., 161 N.J. at 348 (citing A.W., 103 N.J. at 604-10). The harm may be

established by "a delay in establishing a stable and permanent home." In re

Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

In this case, it is indisputable that L.J.B. sustained actual harm as a direct

result of S.E.H.'s prenatal substance ingestion. See N.J. Dep't of Children &

Families v. A.L., 213 N.J. 1, 22 (2013) (recognizing "proof that a child is

suffering from withdrawal symptoms at birth could establish actual harm").

Indeed, L.J.B. remained in the NICU for fifty-four days following his birth, and

suffers from "severe disabilities."

Of course, defendant did not give birth to L.J.B. Nonetheless, as the judge

aptly recognized, defendant abused drugs alongside S.E.H. during her

pregnancy, and he failed to insure that S.E.H. received prenatal care. Although

the judge credited defendant's undisputed attempts to regain sobriety and avail

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himself of services, the judge cited defendant's "history of repeating criminal

behavior," his "history of repeating substance abuse[,]" his lack of "any

meaningful history of employment stability[,]" and his lack of "any meaningful

history of housing stability."

The record underscores the judge's findings. For example, despite the

Division's continued prompting, defendant refused to seek employment, pending

reunification with L.J.B. Further, Dr. Lee's evaluation of defendant indicates he

is psychologically less mature and less developed than

most adults, with a heightened level of anger and

resentment, impulsive and reckless style, and self-

centered tendencies. He is prone to ongoing

instabilities in his life and situation, with a heightened

risk for criminal recidivism and substance abuse

relapse. His knowledge of parenting and childrearing

are rather limited. His prognosis for significant and

lasting changes is poor.

Moreover, L.J.B. has never been in defendant's custody and defendant will

remain incarcerated at least until 2020 or 2021. See In re Adoption of Children

by L.A.S., 134 N.J. 127, 143 (1993) ("performance as a parent before

incarceration" is a factor to consider when determining whether an incarceration

would support termination of parental rights); see also R.G., 217 N.J. at 554-55

(alteration in original) (while incarceration is not dispositive, it is "probative of

whether the parent is incapable of properly caring for . . . or has abandoned the

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child"). Referencing Dr. Lee's evaluation, the judge recognized defendant will

"need at least [twelve] months of services" after he is released from prison.

Further, L.J.B. requires specialized care, including frequent feedings and

medical appointments. In fact, L.J.B.'s frail condition prevented visitation at the

jail.

Conversely, L.J.B.'s continued placement with D.M. and R.S. is in the

child's best interests. R.S. and D.M. have stable housing and steady sources of

income. D.M. is gainfully employed as a NICU nurse and is therefore qualified

to address the child's special needs. R.S. is a retired firefighter, who receives a

pension and cares for L.J.B. full-time. According to the bonding evaluations

performed by Dr. Lee, L.J.B. would suffer irreparable harm if he were removed

from D.M. and R.S. See F.M., 211 N.J. at 451.

Assuming arguendo that Dr. Lee did not review records regarding services

defendant received in jail, defendant nonetheless failed to rebut Dr. Lee's

testimony that defendant's prognosis was poor and he was unable to safely parent

L.J.B., a special needs child. Rather, the evidence overwhelmingly supports the

judge's conclusion that defendant does not have the "housing," "income," or

"skill set" to care for L.J.B., who will continuously reside with R.S. and D.M.,

with whom he is bonded, for four to five years before defendant is released from

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prison. Defendant will then need another year of services before he even can be

considered for placement. We agree with the judge that L.J.B.'s permanency

should not hang in the balance unless and until defendant is able to provide the

child with a safe and stable home.

In sum, we discern no error in the judge's determination that the Division

satisfied the first and second prongs of the best interest test by clear and

convincing evidence. The record supports the judge's findings.

B.

Turning to the third prong, defendant claims the Division failed to provide

him with recommended psychotherapy; the court improperly suspended

visitation without conducting a plenary hearing; the record does not indicate the

Division informed D.M. and R.S. of the difference between kinship legal

guardian (KLG) and adoption; and the trial judge failed to consider alternatives

to the termination of his parental rights. We disagree.

Initially, defendant does not dispute that the Division offered him an array

of services. Rather, he claims that because he was not afforded individual

psychotherapy, as recommended by the Division's psychologist, the Division

"derailed his efforts to fully rehabilitate himself," preventing him from gaining

custody of L.J.B. However, "parents always can argue that [the Division] should

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have done more . . . ." M.M., 189 N.J. at 286. The Division need not be perfect

in its services offered, but only reasonable and acting within the child's best

interests. Ibid.

Instead of referring defendant to individual psychotherapy, the Division

referred him to individual counseling, but defendant failed to complete that

service. As the judge accurately observed, despite the "myriad of services"

provided by the Division, defendant was incarcerated following his burglary

conviction. See R.G. 217 N.J. at 557 (recognizing the Division is "necessarily

impeded by the difficulty and possible futility of providing services to an

incarcerated person").

Secondly, following defendant's incarceration, the court suspended

visitation based on the written recommendations of two of L.J.B.'s treating

physicians. Because there were no genuinely disputed issues concerning the

child's fragile health, we agree with the trial judge that a plenary hearing was

unnecessary to determine whether visitation was appropriate in prison. See P.T.

v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999); see also Hand v. Hand, 391

N.J. Super. 102, 105-06 (App. Div. 2007) (holding that a plenary hearing is not

required in every contested proceeding). Given the circumstances, it was not

unreasonable for the judge to deny defendant's request for visitation while he

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was incarcerated especially where, as here, Dr. Lee observed L.J.B. has "an

ambivalent and insecure attachment with [defendant]."

We next consider defendant's contention that D.M. and R.S. were not

adequately informed of the difference between KLG and adoption. Our Supreme

Court has recognized that KLG is "not meant to be a substitute for the

permanency of adoption but, rather, to provide as much permanency as possible

when adoption is not feasible or likely and a relative is willing to care for the

child . . . ." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510

(2004). Where adoption is feasible or likely, there is "no need to determine

whether KLG was in the best interest of" the child. N.J. Div. of Youth & Family

Servs. v. T.I., 423 N.J. Super. 127, 137 (App. Div. 2011). We have found

adoption appropriate, rather than KLG, where the child has been in the custody

of the caretaker for quite some time, the caretaker is committed to adoption, and

the differences between KLG and adoption have been explained. See id. at 136.

Here, the record demonstrates that five months after L.J.B. was placed

with his maternal great aunt and her paramour, a Division worker explained to

R.S. the difference between KLG and adoption, provided documents explaining

the differences in greater detail, and indicated "if the case gets transferred to

[the] adoption [unit]," she would again review the distinction with D.M. and

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R.S. "before they ma[d]e a final decision." Although D.M. was not at home

during the worker's visit with R.S., D.M. clearly stated her intention to adopt

L.J.B. during the bonding evaluation conducted by Dr. Lee one year later, i.e.,

she "wishes . . . to adopt the child if [he is] legally free." Because adoption was

"feasible" and "likely" KLG was not in L.J.B.'s best interests. Id. at 137.

Finally, defendant's claim that the judge failed to properly consider other

alternatives to termination is belied by the record. The Division explored several

options for placing L.J.B. with maternal or paternal relatives. For example, the

Division considered defendant's parents, E.B. and G.B., but they were ruled out

soon after L.J.B. was placed in foster care due to their prior Division history,

domestic violence, allegations of sexual abuse by G.B., and insufficient living

space in their one-bedroom apartment.

Nonetheless, prior to the start of the guardianship trial, Judge Miller

conducted a custody hearing regarding a complaint filed by E.B. nearly one year

after her initial application for placement was denied. E.B. testified that she had

physical disabilities that prevented her from lifting anything more than twenty-

five pounds, and G.B. also was disabled. She acknowledged she was unfamiliar

with L.J.B.'s disabilities and special needs. Before defendant was incarcerated,

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E.B. saw L.J.B. a few times per week, but she had not seen the child in nearly

one year. If she were awarded custody, she would move to a larger apartment.

At the conclusion of E.B.'s testimony, the judge denied E.B.'s petition,

citing her limited relationship with the child, and her unfamiliarity with L.J.B.'s

"severe" health issues. The judge also noted L.J.B. had been in the care of D.M.,

a pediatric nurse, for seventeen months. Accordingly, the judge determined

uprooting L.J.B. from D.M.'s care to E.B.'s care would not be in the best interests

of the child.

Further, S.E.H.'s grandparents were considered together, and her

grandmother was again considered separately after her grandfather moved out

of their trailer home. Ultimately S.E.H.'s grandmother was ruled out because of

her "finances and the state of her house." The Division also considered, but

ruled out, S.E.H.'s cousin because her paramour had pending theft charges.

We are therefore satisfied that the record supports the judge's

determination that the Division satisfied the third prong of the best interests test.

Defendant's remaining contentions, to the extent they have not been

addressed, are without sufficient merit to warrant further discussion in our

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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