STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4972-04T44972-04T4

STATE OF NEW JERSEY

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF G.M.W.,

A Minor.

__________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-108-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent-minor (Olivia Belfatto Crisp, Law Guardian, on the brief).

PER CURIAM

Defendant J.C. appeals the April 21, 2005, termination of his parental rights to G.M.W. ("baby" or "child"). He contends that the ultimate conclusion to terminate his parental rights was not supported by clear and convincing evidence. He also contends that plaintiff New Jersey Division of Youth and Family Services ("Division") abused its powers and responsibilities in failing to provide services in aid of his parental rights. We affirm the judgment below for the reasons expressed in this opinion.

Factual Background

There was little dispute in the evidence. The baby was born on March 31, 2001, and remained in Cooper Hospital until April 27, 2001. The defendant and R.W. ("mother") maintain separate residences and are not married. Prior to the baby's discharge, Cooper Hospital made a referral to the Division. The hospital was concerned that the mother lacked parenting skills, was not prepared to care for her baby, and lacked essential items at her home, including a crib, diapers and baby formula. The Division placed a hold on the baby until the home was properly equipped. On discharge from the hospital, the baby was placed in the custody of her maternal grandmother because she had custody of the mother's other children and the mother lacked parenting skills.

Although the grandmother had been advised to petition for custody, she instead permitted T.B., her son's girlfriend ("foster mother"), to care for the baby. However, in August 2001 the grandmother and the foster mother advised the Division that the mother had re-taken custody of her baby. The Division advised the foster mother to petition for custody. When she did so, the Division supported her application, and she was granted temporary custody, which she has had ever since.

From April through August 2001 the Division was not aware of the defendant's parentage. The defendant knew that the foster mother had custody, but he did not offer any financial support nor did he make arrangements to care for the baby himself. He only saw his child when her uncle occasionally brought her to the defendant's house for a visit. Sometime after August, he sought custody of his child.

On October 12, 2001, an order of paternity was entered indicating that defendant was the father of the minor child. A November 26, 2001, case management order required the Division to perform an evaluation of the defendant's home. The Division reported to the court that it had attempted to do a home evaluation on December 6, 2001, but the defendant had indicated that he was moving and did not yet have the new address. The Division also reported that the paternal grandmother with whom the defendant lived was a confirmed perpetrator of abuse and neglect. She had disciplined two children with a belt. The Division opined that placement in the defendant's home was not appropriate so long as he lived with his mother.

On December 12, 2001, the defendant filed a formal petition for custody. Another case management order was entered on December 17, 2001, ordering a home evaluation before January 1, 2002. The Division worker reported to the court on January 8, 2002, that on December 28, 2001, the Division went to the defendant's home, but were informed by the defendant that he was still not ready and that he would contact the worker when the home was prepared for inspection. This inaction resulted in an order on January 14, 2002, dismissing the defendant's request for custody and parenting time without prejudice. The defendant was advised by the order to notify the Division when he was ready for a home evaluation. The order also informed him that he could file for custody when the home evaluation was completed. The defendant and foster mother filed cross-motions, and the court on April 16, 2002, again ordered defendant to comply with a home evaluation, fingerprints, and a background check. DYFS was to complete its investigation of the paternal grandmother.

When the Division worker went out to the defendant's home in April 2002 for the evaluation, the defendant was not there. When they eventually spoke, the Division worker told him that having the paternal grandmother living with him was a problem because she had a past history with the Division. The defendant was upset by this. Although the Division sent him a letter around May 2002, he did not respond until December 2002 when he demanded to know what the Division was going to do to get his child back to him. In the meantime, a case management conference had been scheduled for June 25, 2002. When the defendant and foster mother did not appear, defendant's petition for custody was again dismissed without prejudice. After a lapse of almost two years, the complaint for guardianship was filed by the Division on March 31, 2004.

In aid of the Division's application, the defendant and the foster mother were evaluated by Dr. Chester Sigafoos, a clinical psychologist. The court accepted this expert's testimony and found that the defendant had Axis I diagnoses of bereavement disorder and depressive disorder N.O.S. and Axis II diagnoses of narcissistic personality disorder, obsessive-compulsive personality disorder, anti-social personality disorder, and paranoid personality disorder. The court found that the Axis II disorders were not treatable, that they caused the defendant to have a lack of empathy, orientation, consistency and continuity, and that the pathology was serious. The defendant's ability to function in daily life was deficient, and he did not have parental competency. Furthermore, the defendant and his child had not bonded. The child actively avoided the defendant and behaved defiantly. The court found that the attachment of the child to the defendant was "insecure avoidant" as the expert had opined that the child avoided physical and emotional contact with the defendant and showed little reaction to separation or reunion.

By contrast, Dr. Sigafoos testified that the child was strongly attached to the foster mother. The child responded to limit setting by her, unlike the defendant, and the child was not controlling. The child used the foster mother as a secure base from which to explore and responded positively to physical and emotional contact. She could cope with separation and show pleasure upon reunion. Dr. Sigafoos opined that the child would suffer grief and separation if removed from the foster mother and her other child, and that the defendant would not be able to help his child recover. There were no positive factors to reunification, but there were serious negative factors.

In rendering her decision, the trial court concluded that the Division had shown by clear and convincing evidence that the best interests of the child required termination of the parental rights of the mother and defendant and granted the Division the right to place the child for adoption. The court also concluded that the Division had shown by clear and convincing evidence that the child had a secure attachment to the foster mother and that the child would suffer serious and enduring harm if the relationship ended.

Scope of Review

If the judgment of the court below is supported by substantial evidence, it should not be disturbed on appeal unless the findings of the trial court are so wholly insupportable as to result in a denial of justice. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483 (1974). "The appellate court therefore ponders whether . . . there is substantial evidence in support of the trial judge's findings and [ultimate] conclusions." Id. at 484. The evidence supporting a termination must be clear and convincing. In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986).

Termination of Parental Rights

The test for termination of parental rights is the "best interests" of the child. N.J.S.A. 30:4C-15.1(a). The statute requires that the following elements be proven in order for termination to occur:

(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 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) The termination of parental rights will not do more harm than good.

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

These four factors are not independent of each other. Rather, they are related and overlap with each other to provide a comprehensive standard that identifies the best interests of the child. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

(1) Danger to Safety, Health or Development

Under the first factor, physical harm is not the sine qua non of endangerment. The Supreme Court has recognized that the potential for emotional injury can be a crucial factor. A.W., supra, 103 N.J. at 605. The "psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Ses v. Baber, 74 N.J. 201, 222 (1977). The Supreme Court has observed that the "potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605.

A court analyzing the ability of the parents to give their children care should not look at the parents to determine whether they are themselves unfit or whether they are the victims of social circumstances beyond their control; it should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health.

[Id. at 607.]

The trial court applied this factor in analyzing the evidence before it. The court found that the defendant failed to follow up with the Division regarding contact with his child and never submitted to fingerprinting, a background check or a home evaluation. In the two years prior to trial, the defendant had seen his child only seven to eight times, the last time being nearly six months before trial. The defendant admitted that he had seen his child only twenty times since birth. The inconstancy of his attempts to develop a relationship with his child does not bode well for the future of the child. The court relied on the opinion of Dr. Sigafoos that awarding custody to the defendant would cause significant emotional injury to the child. The expert opined that the defendant has not bonded with his child and, due to his personality disorders, lacks the ability to function as a parent.

The Supreme Court has stressed that the attention and concern of a caring family is "the most precious of all resources." A.W., supra, 103 N.J. at 613. A parent's withdrawal of that solicitude, nurture and care for an extended period is in itself a harm that endangers the health and development of the child. K.H.O., supra, 161 N.J. at 352-54. Here, the trial court found that the defendant had no relationship with his child. This finding is clearly and convincingly supported by substantial credible evidence in the record. The court correctly concluded that the Division met its burden of proof by clear and convincing evidence that the child's health and development had been harmed.

(2) Parent Unable to Eliminate the Harm

Under the second prong, a trial court is required to determine whether it was "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. Contrary to the defendant's suggestion, the Division is not required to show mental illness or severe substance abuse, as in N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002), and In re Guardianship of J.T., 269 N.J. Super. 172 (App. Div. 1993). Instead, this prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable protective home [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999).

The trial court found that the defendant had been unable or unwilling to provide a safe and stable home for his child and that he had shown his unwillingness to care for her through his inconsistent actions with the Division. The defendant had not remedied the danger in his home by ending his cohabitation with his abusive and neglectful mother. He had not established a consistent visitation. He had not followed through with any requests that the Division made of him. In addition, Dr. Sigafoos opined that it was unlikely that the defendant would have endeavored to treat his psychological disorders, much less been successful in that endeavor. Indeed, he had not sought treatment. Those psychological disorders present harm to the child from the lack of a functional parent.

(3) Reasonable Efforts to Provide Services

Under the third prong, the services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002). This test focuses on the Division's efforts to help the parents correct the problems that necessitated removal and placement of the child in foster case. K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. Of course, the parent must participate in the reunification effort. That did not happen here.

The defendant did not cooperate in the home inspection. He did not submit to fingerprinting or a background check. He took no interest at all in the baby until months after she was born. He did not establish regular visitation and failed to appear for scheduled visitation. He was uncooperative in submitting to the psychological evaluation.

Obviously, the Division is not required to force a parent to accept its services nor is it obligated to continue to offer services when the preliminary steps are ignored by the parent. A child deeply needs nurturing by a parent, especially during the child's formative years, as is the case here. Yet the defendant never attempted to nurture his child. This is not a parent who rushed to provide a safe home when he learned that the baby had been given by the mother and grandmother to another to rear. Rather, he sat back and allowed the foster mother to care for the baby for months before initiating very inconsistent and uncooperative efforts to obtain custody. Substantial evidence in the record clearly and convincingly establishes that the Division made reasonable efforts to provide services and that said efforts were ignored by the defendant.

For the first time on appeal, the defendant contends that the Division had an "institutional bias" against him. It failed to provide services to assist him in parenting and instead used its services to terminate his parental rights contrary to In re the Guardianship of J.C., 129 N.J. 1, 21 (1992). Under Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973), we frequently decline to consider issues that were not presented to the trial court unless they go to the issue of the jurisdiction of that court or concern a matter of substantial public interest, which is not the case here.

Nevertheless, it is clear from the record before us that the defendant failed to pursue his custody petition for a significant period of time before the Division instituted this action. He also failed to establish consistent visitation by availing himself of Division visitation services. Thus, it is the defendant's own inaction that prevented bonding with his child.

In J.C. the Court was concerned with the institutional bias that may arise from reliance on bonding theory to terminate parental rights when a child has been voluntarily placed in foster care. 129 N.J. at 21. In other words, by providing the child with foster care, the Division creates bonding with the foster parent. When bonding is then the basis for termination of parental rights, the Division has created an institutional bias that favors permanent placement rather than reunification.

Here, bonding theory was not the sole basis for terminating parental rights. The court had substantial evidence before it other than bonding to support its finding that the child would be harmed by placement with the defendant. This included the defendant's multiple psychological disorders and the absence of a safe home. As a result, the concern in J.C. has not been triggered in this case. The court's conclusion that the child's health and development had been endangered by the absence of a parental relationship with the defendant is unassailable.

The court is also required by this prong to consider alternatives to permanent placement. The trial court here concluded that there were no alternatives. The maternal grandmother was not willing to take her granddaughter, and the mother was not seeking custody and was not, in any event, an appropriate placement for the reasons expressed in the trial court's opinion. The defendant had not attempted to achieve any bonded relationship with his child for four years. Keeping the child in foster care was not reasonable because the child needed emotional permanency.

Thus, the Division proved by clear and convincing evidence that it had made reasonable efforts to provide services to help the defendant correct the circumstances that led to keeping the child in placement outside the home, and the court considered alternatives to termination of parental rights.

(4) Termination Will Not Do More Harm Than Good

Under this last prong, the overriding consideration is the child's need for permanency and stability. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. K.H.O., supra, 161 N.J. at 357; A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not justify the termination of parental rights. In re Guardianship of K.L.F., 129 N.J. 32 (1992); N.J. Div. of Youth & Family Servs. v. F.M. supra, 375 N.J. Super. 235, 260-62 (App. div. 2005).

Here, the defendant contends that the court's decision to terminate his parental right was predicated upon a "better interests" determination rather than the "best interests" of the child. He contends that the proofs must be compelling in order to overcome the presumption that children should not be taken from their biological parents.

The court found that no bond existed between the defendant and the child. Furthermore, the court accepted the opinion of the expert that terminating the bond between the child and the foster mother would have a very deleterious effect on the child. Dr. Sigafoos opined that this would occur because the foster mother was the only parent with whom the child had bonded. Separation would cause significant bereavement that the defendant was not capable of curing.

The conclusion that making the placement permanent would not do more harm than good was supported by clear and convincing evidence. Thus, the court correctly applied statutory and case law to the facts and, based on clear and convincing evidence, concluded that the parental rights of the defendant and mother should be terminated.

 
Affirmed.

They are also the parents of J.T.W. as to whom their parental rights were terminated in a prior proceeding.

The natural mother has not appealed from this determination.

The defendant has a criminal record. He was convicted of unlawful possession of a handgun on February 9, 1996. On April 14, 1997, he was convicted of criminal mischief. On August 21, 1998, he violated probation by possessing another handgun. Finally, on May 19, 1999, he was found guilty of unlawful possession of a handgun.

(continued)

(continued)

17

A-4972-04T4

RECORD IMPOUNDED

December 16, 2005