STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. G.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2232-05T4

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.B.,

Defendant-Appellant.

________________________

IN THE MATTER OF THE

GUARDIANSHIP OF D.L.H.,

A Minor.

_________________________________________________

 

Submitted August 29, 2006 - Decided September 7, 2006

Before Judges Payne and Gilroy.

On appeal from Superior Court of New

Jersey, Chancery Division-Family Part,

Union County, FG-20-117-04.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C.

Kazer, Designated Counsel and on the

brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Andrea M.

Silkowitz, Assistant Attorney General,

of counsel, Eva M. Serruto, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for respondent

D.L.H. minor child-respondent (Phyllis

G. Warren, Assistant Deputy Public

Defender, of counsel and on the brief).

PER CURIAM

G.B., the biological father of D.L.H. (fictitiously, Dawn), appeals from an order of a judge of the Family Part, terminating his parental rights to the child, claiming that the State failed to establish by clear and convincing evidence the second, third and fourth prongs of the "best interest" test set forth in N.J.S.A. 30:4C-15.1 as grounds for termination. We affirm.

Dawn was born prematurely to B.H. on May 29, 2003, having received no prenatal care. Both mother and child tested positive for cocaine and methadone at the time of birth. B.H. named G.B. as the father of the child. Both signed fifteen-day and six-month agreements permitting the New Jersey Division of Youth and Family Services (DYFS) to place Dawn in foster care. Prior to trial, which commenced on October 26, 2005, Dawn had been placed in four foster homes. She was removed from the first on December 3, 2003 after she was observed to have facial bruising and severe diaper rash. The second placement, extending from December 3 to December 11, 2004, was terminated at the request of the foster mother as the result of the hospitalization of another foster child. Following a third placement that terminated on September 1, 2004, Dawn was placed with her current foster mother, a close friend of Dawn's third foster parent. The present foster mother, having "fallen in love" with Dawn while in her prior placement and, as a result, obtaining the training necessary to qualify herself as a foster parent, seeks to adopt. Dawn is a special needs child whose speech has been significantly delayed and who displays a flat affect. Her developmental and emotional problems are recognized by the foster mother, who appears to be able to read Dawn's non-verbal signs and to appropriately foster emerging language skills, and who offers a nurturing environment to the child. Dawn's entry into an early intervention program has been proposed by DYFS.

The father has unquestionably taken an interest in Dawn, visiting her in the hospital on a regular basis following her birth and consistently attending bi-weekly visitation. Additionally, at the request of DYFS he has completed a twelve-week parenting course, undergone urine screens for drugs, been evaluated for drug treatment and undergone counseling, and he participated in psychological and bonding studies. However, although he has completed high school and claims to have been regularly employed on a fulltime basis, most recently for the Plainfield Housing Authority, the father has not established a stable residence to which Dawn could be taken or a plan for her care, other than that she be placed in the temporary custody of his niece in North Carolina. The father has not at any time requested housing assistance or other services from DYFS.

Although the father has claimed to be drug-free, urine tests have demonstrated the father's use of marijuana on July 19, 2004 and shortly before trial on September 26, 2005. Additionally, the father appears to maintain a relationship with Dawn's mother, who has been found unsuitable as a parent because of her continued use of cocaine and methadone and her unstable lifestyle.

Although the father is of average intelligence and has not been diagnosed as suffering from any psychological condition, and although Dawn has been found to be comfortable in his presence, no bond between the two has been found to have developed. His ideas regarding the care of a child of Dawn's age, including toiled training and discipline, were characterized by the State's psychologist and testifying expert, Elayne Weitz, as "vague" and he lacked understanding of Dawn's emotional needs and the support that would be necessary if she were removed from her present placement and attachments. Weitz testified further that it would not be in Dawn's best interest to delay permanency in order for the father to address the remaining issues preventing unification.

In contrast, Weitz found a loving and trusting relationship and forming bond to exist between Dawn and her current foster mother, with whom she had been placed for approximately nine months at the time of the evaluation. Weitz testified that Dawn would suffer significant harm if she were taken from her and placed elsewhere because of the likelihood that Dawn would not be able to form any further personal bonds. "[I]f she never learns to bond with a primary care giver, then she will have meaningless . . . relationships throughout her life." Additionally, Weitz testified that if Dawn were moved to a new home, it was likely that her language development would regress and that she would not be amenable to toilet training.

The father's niece in North Carolina was ruled out as a placement resource by letter dated September 29, 2005, and she has not appealed that ruling. Although an interstate evaluation of the niece's home, ordered by the court on May 25, 2004 and initiated on August 4, 2004, was never completed because of a lack of communication by officials in North Carolina, the niece's interest in the child was deemed at trial to be "lukewarm." Dr. Weitz, who conducted a bonding evaluation between the niece and Dawn, found the niece, a labor and delivery nurse who had seen Dawn once before, to interact appropriately with the child. However, she expressed concern regarding potential rigidity and anger on the niece's part, and recommended further investigation of the niece's husband's possible criminal history and his relationship with his older, special needs, child. Weitz did not advise delaying permanency to permit the interstate evaluation to be completed, and did not recommend kinship guardianship as a solution to Dawn's custodial needs, because that solution would leave Dawn's position "somewhat ambiguous for her." She noted that a placement in North Carolina would be wrenching to Dawn, since as a result of the geographic distance, a gradual transition from one residence to another, as had occurred between Dawn's third and fourth placements, could not take place.

Shortly after the trial, at which Weitz and case worker Joanne Ali were the only witnesses, the judge rendered a comprehensive opinion on the record, in which she determined that the State had met its burden of proving by clear and convincing evidence that termination of the father's parental rights was warranted. This appeal followed.

On appeal, the father concedes that the first prong of N.J.S.A. 30:4C-15.1, that Dawn's "health and development have been or will continue to be endangered by the parental relationship," had been met. However, he contests the adequacy of the State's proofs with respect to the other three prongs, which are as follows:

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

See also In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (finding the criteria to be related and overlapping); N.J. Div. of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (establishing the criteria).

In reaching a decision on this appeal, we are required to give deference to the factual findings of the trial court unless we find that those findings are manifestly unsupported by or inconsistent with the credible evidence. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, we need not accord such deference to its legal conclusions, but must instead review them de novo. Rova Farms Resorts v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

We find that the unrebutted testimony of Ali and Weitz, together with the exhibits introduced into evidence at trial, provided a sufficient foundation for the court's determination to order termination of the father's rights as being in Dawn's best interests under the stringent standards set forth in decisions such as that in K.H.O., supra, 161 N.J. at 347-49. That no allegations of sexual or physical abuse exist in this case, and that the father has maintained consistent contact with Dawn are, in our view, insufficient considerations to warrant reversal in light of the father's demonstrated use of drugs, lack of a stable home environment, lack of a plan for Dawn, and failure to remedy these deficiencies during the period from her birth in the Spring of 2003 to trial in the Fall of 2005.

In this regard, we find that DYFS offered sufficient assistance to the father while Dawn was in foster care, providing for visitation, substance abuse evaluation and treatment, parenting classes, and appropriate evaluation of his psychological status and bonding with his child. Although the father claims that DYFS failed to offer him housing, as caseworker Ali testified without contradiction, the father never sought the assistance of DYFS in this regard or requested the court's intervention. Indeed, he never took any step that would provide evidence to the court that his fitness as a parent was reasonably foreseeable. His passivity gave rise to no expectation of change. K.H.O., supra, 161 N.J. at 352-54 (looking to the measures taken by the parent after the child's birth to foster an environment conducive to normal development). The father's conduct in connection with Dawn was limited solely to the act of visitation. However commendable that conduct may have been, it cannot be deemed to demonstrate any willingness on the father's part to eliminate the barriers to unification that were identified as existing in this case or to provide a basis for the conclusion that additional time should be afforded to the father to establish his suitability as a custodial parent. The time for the commencement of such efforts had run out, and attention was appropriately refocused upon Dawn's needs. N.J. Div. of Youth and Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (noting a shift in focus from protracted efforts for unification with a birth parent to expeditious steps leading to a permanent placement that promotes the child's well-being), certif. denied, 180 N.J. 456 (2004). In reaching this conclusion, we contrast the circumstances of this case with those of N.J. Div. of Youth and Fam. Servs. v. F.M., 375 N.J. Super. 235, 262-63 (App. Div. 2005), upon which the father relies, in which we found that the court's factual findings regarding the mother's lack of progress in alleviating the obstacles to reunification lacked evidential support. There, evidence existed of substantial and continuous curative efforts on the mother's part. No such efforts have been demonstrated here.

In addition to the foregoing evidence, the testimony of Dr. Weitz made it clear that a further delay in placement would add to the harm that Dawn had already experienced. Id. at 353-54. In this regard, Weitz stated that the bonding necessary for normal psychological development usually occurs within the first three years of a child's life. Dawn, who was two and one-half at the time of trial, had been observed by Weitz to have no bond with her father and, as the result of her frequent changes in placement, to have difficulty in establishing the close ties with her care givers that Weitz saw emerging between Dawn and her present foster mother. K.H.O., supra, 161 N.J. at 352 (observing that prolonged inattention to a child's needs may encourage a stronger bonding relationship to a foster parent that must be considered in determining the child's best interests). No testimony or evidence contradicted Weitz's statement that any delay in permanent placement would thus serve to harm the child.

The father argues that a decision on termination should have been deferred until the interstate evaluation of the suitability of his niece as a foster parent was concluded, and he faults DYFS for not initiating the evaluation promptly and ensuring that the evaluation was completed by the time of trial. However, as the judge noted in her decision, the father did not offer his niece as a placement resource at the time of the initial fifteen-day placement or the later six-month placement, but instead furnished her name almost one year after Dawn's birth. Further, testimony and evidence presented by Ali on the second day of trial provided a solid foundation of the court's determination that any delays in securing the needed evaluation were not the fault of DYFS and that the niece exhibited little initiative in seeking custody of the child or receptivity to the multiple contracts with her that were initiated by Ali. It is noteworthy that the niece did not appeal the rule-out letter sent to her, despite Ali's personal contact with her and notification of her appellate rights. Moreover, because adoption is feasible in this case and because kinship legal guardianship would not serve to satisfy Dawn's needs, it was properly ruled out by the trial court as an alternative to Dawn's present placement. N.J. Div. of Youth and Fam. Servs. v. P.P., 180 N.J. 494, 512-13 (2004).

As a final matter, we find no ground to disturb the trial court's conclusion that termination of the father's parental rights would not do more harm than good. Although he maintained continued contact with his daughter, in the opinion of Weitz, no bond between the two existed, and Dawn would not suffer emotionally from the cessation of visitation. No evidence to the contrary was produced. Moreover, Weitz provided ample evidence that Dawn was an emotionally fragile child whose need for love, stability and permanence was being properly satisfied by her present foster mother, and that severance of the emerging bond between the two would case Dawn to suffer irreparable harm.

We are thus satisfied that the four prongs of the "best interest" test have been met in this case.

The judgment of the trial court is affirmed.

 

A order of termination by default has been entered against the mother, who failed to appear for evaluations and did not attend the trial. The mother and father are not married to each other.

However, the State's psychological expert found the father to have chronic sadness leading to fatigue, to be unassertive and to have low self-esteem. The majority of the psychological testing conducted by that expert on him was found to be invalid as the result of superficial or misleading responses.

Contact has been maintained between Dawn's present foster mother and her previous foster parent and the children in her care, which Weitz deemed to be positive in nature.

A family friend was ruled out on July 19, 2005 as a placement resource following receipt of Weitz's opinion that Dawn should not be moved again. A sister of the father, identified by him as a resource, expressed no interest in obtaining custody of the child.

The father has not challenged DYFS's decisions to rule out the other two people identified by him.

(continued)

(continued)

13

A-2232-05T4

RECORD IMPOUNDED

September 7, 2006