DCPP VS. N.C. AND R.S. IN THE MATTER OF THE GUARDIANSHIP OF Q.C. AND M.S. (FG-16-0068-15, PASSAIC COUNTY AND STATEWIDE) (CONSOLIDATED)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-0934-16T1
A-0935-16T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.C. and R.S.,
Defendants-Appellants.
____________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF Q.C. AND M.S., minors.
____________________________________
Submitted October 18, 2017 – Decided December 5, 2017
Before Judges Fuentes, Koblitz, and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-0068-15.
Joseph E. Krakora, Public Defender, attorney
for appellant N.C. (Jennifer M. Kurtz,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant R.S. (Richard Sparaco,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Melissa Medoway, Deputy Attorney General, on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors Q.C. and M.S.
(Margo E.K. Hirsch, Designated Counsel, on the
brief).
PER CURIAM
In these consolidated appeals, N.C. (Nancy) and R.S. (Roger)
appeal the October 13, 2016 Family Part order terminating their
parental rights to two children. We affirm substantially for the
reasons set forth in Judge Daniel J. Yablonsky's September 19,
2016 comprehensive and well-reasoned written opinion.
The evidence is set forth in detail in the judge's opinion.
A summary will suffice here.
Nancy and Roger are the parents of two children, Q.C.
(Quenton), born in 2008, and M.S. (Mary), born in 2010.1 The most
recent referral to the Division of Child Protection and Permanency
(DCPP) occurred on June 3, 2013, when Nancy awoke in bed with her
then partner to find her two-month old infant, dead, laying between
them. She acknowledged going to sleep with the child on her chest
1
Nancy and Roger are the parents of other children with other
partners, but Quenton and Mary are the only children involved in
this case.
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after smoking marijuana. Roger was not present or involved with
the incident.
Following an emergency removal, the children were placed
under the care, supervision and custody of the DCPP. The children
were placed with a relative at first; but this person was not able
to care for the children long-term. They then were placed with
the maternal grandmother. Unfortunately, she allowed Nancy, whose
parenting time was to be supervised, and her brother J.C., a
convicted sex offender, to have unsupervised contact with the
children. The children were removed in August 2013, and placed
with K.C. (Katie), a maternal great aunt. They remained in her
care until February 2014, when Katie, who was a military reservist,
was deployed. The children were placed temporarily with a resource
family we refer to here as the Cannons;2 but that placement was
extended when Katie was injured while on assignment.
Quenton complained to Ms. Cannon that Katie was abusive to
him. When Katie came to visit the children, Ms. Cannon saw Katie
hit Mary on the legs for discipline. Ms. Cannon reported this to
DCPP. After an investigation, DCPP determined that Katie was not
2
We use a fictitious name to maintain confidentiality.
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an appropriate caretaker. The children remained with the Cannons,
who have expressed an interest in adopting both children.
The court initially rejected DCPP's plan for termination of
Nancy's and Roger's parental rights, and extended the time to
effect reunification. When that was not successful, DCPP filed a
complaint seeking termination of their parental rights to both
children. Following a twelve-day trial, Judge Yablonsky entered
judgment on October 13, 2016, terminating Nancy and Roger's
parental rights to the children. Judge Yablonsky recited his
factual findings and legal conclusions in a memorandum of opinion.
The court found that DCPP had proven by clear and convincing
evidence all four prongs codified in N.J.S.A. 30:40C-15.1(a),
which, in the best interests of the children, mandates termination
of parental rights. In re Guardianship of K.H.O., 161 N.J. 337
(1999). He found the testimony of DCPP's caseworkers to be
"credibl[e]" and "consistent with the [DCPP] record in this case."
With respect to Nancy, the court found DCPP provided services
including "parenting classes, substance abuse treatment, anger
management classes, psychotherapy, and a psychiatric evaluation."
She obtained drug treatment and was successfully discharged but
relapsed within weeks. Although she maintained sobriety at the
time of trial, based on expert testimony, she remained at risk to
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relapse because she did not "recognize her substance use as a
potentially dangerous factor in her ability to care for her
children." She received psychotherapy because of the death of her
child. She had supervised visitation with the children, but at
times she was "detached and elusive" toward them.
Addressing Roger, the court found he did not attend any of
the required counseling services. He was referred to "sex-offender
specific therapy" but did not attend. His visitation with the
children was "irregular" and he showed "[l]imited, if any,
affection . . . at [those] visits." He was discharged from the
visitation program for non-attendance.
The court found that the children's safety, health or
development was endangered by the parental relationship with Roger
based on his "pattern of abandoning his children, non-engagement
in [DCPP] recommended services, and continued absence in multiple
visitation programs." The DCPP called Dr. Robert Miller, a
psychologist, as an expert witness in parenting capacity and
bonding. Dr. Miller opined that maintaining a relationship with
Roger posed an "increasing and unnecessary risk of harm" to the
children because he was unable or unwilling to remediate his
parental deficit. Roger also was incarcerated at the time of
trial, serving a four-year sentence for third-degree sexual
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assault under N.J.S.A. 2C:14-2(c)(4).3 As a convicted sex
offender, Roger was required to comply with the registration
provisions of N.J.S.A. 2C:7-2(b), commonly known as Megan's Law,
and was subject to Parole Supervision for life, N.J.S.A. 2C:43-
6.4.4
With respect to Nancy, the judge found that her continued
relationship would harm the children. Quenton's teeth had decayed
under her care and the required tooth extractions affected his
speech. The court found she remained "at risk for relapse" for
continued drug use. The court noted that Nancy's pattern of
unstable relationships, involving domestic violence, exposed the
children to harm. The court noted that two experts had opined
that Nancy was "not capable of safely parenting the minors now or
in the foreseeable future, indicating the health and safety of the
children would be put at risk if they were placed back in her
care." The court found she had not overcome her parenting
deficits.
3
An actor is guilty of sexual assault under N.J.S.A. 2C:14-2(c)(4)
where the victim is less than sixteen years old but older than
thirteen, and the actor is at least four years older than the
victim.
4
Roger was also adjudicated delinquent in the Family Part as a
juvenile based on a sexual offense.
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The court found that DCPP made reasonable efforts to help the
parents through the provision of services. DCPP also "explored
. . . multiple relative placements." With respect to Katie, she
was ruled out by DCPP "due to follow up allegations and reports
of abuse by the minors." The court noted she had been indicted
on insurance fraud and was "facing significant jail time as well
as fines." Her home would not be licensable by DCPP.
The court found that termination of Nancy's and Roger's
parental rights would not do more harm than good to the children
based on the experts' testimony concerning the bonding
evaluations. All of the experts, including Nancy's, testified
that the children were securely attached to the Cannons. There
was testimony that the children were thriving with them. Dr.
Maureen Santina, Ph.D, an expert in psychology and bonding,
testified for the Law Guardian. She and Dr. Miller testified that
the children would be harmed if they returned to Nancy or Roger
and that the resource parents were able to ameliorate any harm
caused by termination of parental rights. Dr. Miller and Dr.
Santina found the children's attachment to Nancy to be insecure
or ambivalent. There was no bonding evaluation conducted involving
Roger and the children. Roger does not contest the fourth prong
of the best interests test on appeal.
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On appeal, Nancy does not dispute that DCPP provided services
to her to assist in remediating the causes of removal. She does
not argue that the children should be in her care; rather, she
claims that she was prejudiced when the children were removed from
Katie's care and placed with the Cannons. Roger contends on appeal
that he was not offered appropriate services and that the evidence
was not sufficient to prove the first three prongs of the best
interests test.
On appeal, our review of the judge's order terminating
parental rights is limited. We defer to his expertise as a Family
Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and are
bound by his factual findings provided they are supported by
sufficient credible evidence. N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of
J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
We conclude the factual findings of Judge Yablonsky are
fully supported by the record and agree with the legal conclusions
drawn therefrom. He carefully considered the proofs, which show
that neither parent is capable of providing stable and adequate
care for the children now or in the near future. Both parents
were offered appropriate services but either did not utilize them
or did not remediate the causes for removal of the children. We
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agree that termination of Nancy's and Roger's parental rights to
Quenton and Mary is in the children's best interests and will help
the children achieve permanency with their resource parents.
We briefly comment on their specific arguments. We reject
Nancy's contention that the trial court erred by not conducting a
best interest hearing at some point earlier than the guardianship
trial on Katie's "rule out" as a placement option. In N.J. Div.
of Youth and Family Servs. v. J.S., 433 N.J. Super. 69, 75 (App.
Div. 2013), certif. denied, 217 N.J. 587 (2014), we held that "the
Division's rule-out authority is always subject to the Family
Part's ultimate assessment of that child's best interests."
Because "[t]he satisfaction of the rule-out criteria in N.J.S.A.
30:4C-12.1 is, in essence, just one element of the requirements
imposed by N.J.S.A. 30:4C-15.1(a)'s four-prong 'best interests'
test," id. at 85, there was no error by the court in considering
the issue as part of the guardianship trial.
In addition, we find no error in the court's consideration
of Katie's pending criminal charges, where she faced jail time if
convicted. In making a best interests analysis, Judge Yablonsky
appropriately took into consideration Katie’s predicament in
determining the children's prospects for permanency. N.J. Div.
9 A-0934-16T1
of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 450 (App.
Div. 2013).
Nancy indicated that Quenton's claim of abuse was unsettled
and lacked evidential support. We disagree. The record is clear
that those allegations were made to multiple individuals,
including doctors, therapists and DCPP caseworkers. It was
entirely appropriate for the court to consider those allegations.
We also disagree with Roger's contention that the court erred
because he was not offered services appropriate for his level of
cognitive abilities. A DCPP representative testified that the
program to which he was referred would "get to know [their clients]
and know at what level to service them." In any event, Roger did
not participate in the services offered.
Finally, we reject Roger's contention that the court
terminated his parental rights because he was incarcerated. See
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 556
(2014) (holding that "incarceration alone—without particularized
evidence of how a parent's incarceration affects each prong of the
best-interests-of the-child-standard—-is an insufficient basis for
terminating parental rights."). A fair reading of the judge's
opinion shows that the decision to terminate Roger's parental
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rights was firmly based on findings well beyond the fact of Roger's
incarceration.
Affirmed.
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