DIVISION OF YOUTH AND FAMILY SERVICES v. J.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2682-05T42682-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.J.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF C.C.J. AND C.R.J.

Minors.

______________________________________________________

 

Submitted August 22, 2006 - Decided August 29, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FG-12-73-05.

Yvonne Smith Segars, Public Defender, attorney for appellant J.J. (Kevin G. Byrnes, Designated Counsel, on the brief).

Zulima Farber, Attorney General, attorney for respondent Division of Youth and Family Services (Michael J. Haas, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor children, C.C.J. and C.R.J. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The defendant, J.J., appeals from a judgment of guardianship entered by the Chancery Division, Family Part, Middlesex County, on December 23, 2005. That judgment terminated his parental rights and the parental rights of R.C.G. with respect to their two daughters, C.C.J., born August 28, 2000, and C.R.J., born May 30, 2002. The biological mother of the two girls, R.C.G., and her estranged husband, R.G.M., were also named as defendants in the complaint brought by the New Jersey Division of Youth and Family Services (DYFS or the Division) seeking termination of parental rights and guardianship. Neither R.C.G. nor R.G.M. appeared at the trial, though R.C.G. was represented by counsel who did appear. R.G.M., who was considered the legal father of R.C.M.'s children because of the undissolved marriage, signed denials of paternity with respect to C.C.J. and C.R.J. Subsequently, DNA tests confirmed that J.J. is the biological father of the two girls and he does not contest that fact. This appeal concerns only the termination of the parental rights of J.J. We affirm.

Following a two day trial conducted on December 9 and December 14, 2005, the court rendered its oral opinion on December 15, 2005. Among other things, the court found that both R.C.G. and J.J. "abused alcohol and had a stormy and contentious relationship that often led to episodes of domestic violence which also involved the children." Elaborating on that finding, the court stated that:

[C.C.J.], being the oldest of the children, was involved in being present during domestic violence incidents and perhaps the victim of one such incident herself where, after the mother was seen with a bloody nose, the child was also seen with a scratch on her face. There were other incidents where the police were called for domestic violence where the children were present in the home.

On this appeal, defendant contends that the judgment terminating his parental rights should be vacated because it was based on unreliable evidence. More particularly, defendant contends the Division proffered allegations made to caseworkers who then recorded these hearsay allegations in their written records. He contends those records are only reliable if they are derived from "caseworkers who have 'first-hand knowledge of the facts'" and he cites as authority New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 595 n.1 (1986)). That footnote cites an opinion of this court in In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969).

In Cope, supra, this court attempted to ensure the reliability of evidence upon which guardianship decisions are made and at the same time to give the answering parent the fullest possible opportunity to test the reliability of the agency's essential evidence by cross examination. Ibid. In that context, we discussed the balancing that is required:

[W]e are dealing here with a statutory scheme established to provide a means by which the Bureau [of Children's Services, the predecessor of DYFS] or other petitioner may obtain guardianship of children in the Bureau's custody. As the Bureau and the court both properly indicate, a rule requiring all Bureau personnel having contact with a particular case to give live testimony on all the matters within their personal knowledge would cause an intolerable disruption in the operation of the Bureau.

As a result, it becomes necessary to allow certain evidence to be produced in a hearsay form while seeking to give protection to the rights of the parent. In reaching this balance, we conclude that in cases of this type the Bureau should be permitted to submit into evidence, pursuant to Evidence Rules 63(13) and 62(5), reports by Bureau staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau.

[Ibid.]

The court then observed:

Reports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein. The parent remains free to offer evidence contradicting any statements present in such reports and, of course, the trier of the facts may in his discretion call for live testimony on any point.

[Id. at 344.]

Thus, in the context of this case, it is clear that the footnote cited by defendant does not support the exclusion of the records and reports of repeated referrals to the agency as a result of incidents of domestic violence between R.C.G. and J.J. The incidents were contemporaneously recorded by an agency worker at the time the referrals were made and they were regularly and routinely included in the case files of the clients. Hence, they had a sufficiently high degree of reliability to be considered appropriately in the termination proceeding. See, e.g., N.J.R.E. 803(c)(6). See also N.J.R.E. 803(c)(8). Moreover, in this case, the reports of domestic violence incidents and the actions taken by the agency in response to such reported incidents were reliable indicators of the agency's continuing involvement and response to the conditions that warranted intervention for the protection of the children and assistance to the parents.

In addition, the brief of DYFS notes that the competent and relevant evidence upon which the trial court permissibly relied included materials which confirmed or added to the trustworthiness of the agency records. Among these materials were:

(1) numerous court orders directing [J.J.'s] compliance with services and tasks; (2) judgments of conviction; (3) numerous admissions by [J.J.]; (4) substantial first-hand observations of caseworkers, recorded in the Division's regular business records, regarding the conduct of [J.J.] and his unwillingness to cooperate with services; (5) substantial first-hand observations of police officers from several municipalities regarding the conduct of [J.J.] and injuries to [R.M.G.] and [C.C.J.]; (6) reports of Division consultants; and (7) corroborated statements of [C.C.J.].

In short, there was considerable evidence that either was not hearsay or which came within a relevant exception to the general rule excluding hearsay. That evidence supported the judge's conclusions regarding the nature of the turbulent and unstable relationship between R.C.G. and J.J. and the harmful conduct and environment to which the children were subjected.

Defendant also contends that the evidence presented at the trial through the caseworkers and the expert witnesses failed to meet the legal criteria to justify termination of J.J.'s parental rights. The statutory provision that codified the "best interests of the child" standard, articulated in the Supreme Court's decision in A.W., supra, 103 N.J. at 604-11, is N.J.S.A. 30:4C-15.1(a). That statute provides that parental rights may be severed when the following elements are shown by clear and convincing evidence:

(1) The child's safety, health or development have 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 foster 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.

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

It has been recognized that "[t]he four criteria enumerated in the best interests standard 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." New Jersey Division of Youth and Family Services v. P.P., 180 N.J. 494, 506 (2004) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)).

Here, the trial court concluded that all of the required criteria had been established by clear and convincing evidence. In reviewing the factual findings and conclusions of the trial judge, we are obliged to accord deference to the court's credibility determinations and the judge's "feel of the case" based upon his or her opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We are not to disturb the judge's findings of facts unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Investor's Ins. Co., 65 N.J. 474, 484 (1974)). The conclusions that flow logically from those findings of fact are, likewise, entitled to deferential consideration on appellate review. Ibid. See also Rova Farms, supra, 65 N.J. at 484.

The court found J.J. was not credible, either in his claim of sobriety or in his attempt to portray R.C.G. as the instigator of nearly all of the incidents of domestic violence between them. The court concluded that J.J.'s disavowals were belied by the information in the record. In addition, DYFS and the Law Guardian point to the emotional and psychological harm inflicted upon the children. That harm was reflected in palpable symptoms in the children that were observed by the foster mother. These included temper tantrums, acting out physically, being clingy, having insomnia, sleep terrors and anxiety, and experiencing hyperventilation. No matter whether it was J.J. or R.C.G. who was the instigator of the incidents, both actively participated. Moreover, J.J. may be faulted for having allowed the children to remain with R.C.G., in spite of the fact that R.C.G. was a self-described "controlled alcoholic." Allowing her to place the children at risk, by virtue of her alcohol abuse and violence propensities, was itself an act of neglect on J.J.'s part.

J.J. acknowledged that he was at the time of trial unable to provide a safe and stable home for the children, and the court concluded that "time marches on and time is the enemy of these two children. They need a permanent home." The Court has emphasized the "strong public policy in favor of permanency." P.P., supra, 180 N.J. at 510-11; K.H.O., supra, 161 N.J. at 357. In K.H.O., the Court stated that "[i]n all of our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid.

Although J.J. acknowledged that he was not able to provide a stable home for the children at the time of trial, he projected that he could do so within six months to a year. In the interim, he suggested that his brother, P.J., could serve as a resource for the children. P.J. testified at trial that he was willing to fulfill that role. The court, however, noted that there had been a delay on the part of the paternal uncle, who resides in Delaware, in coming forward to qualify to take custody of the children under an interstate compact.

Moreover, the paternal uncle, though related by blood, is essentially a stranger to the children. Placement with him for a temporary period while J.J. attempts to establish a home would entail two moves or disruptions for the children that would delay even further the needed stability and permanence that would be provided if the foster parents were permitted to adopt in accordance with the permanency plan presented by DYFS.

J.J. contends DYFS failed to meet the third prong of the "best interests" criteria, that is, to provide needed services to help the parents correct the circumstances which led to the children's placement outside the home. In that regard, the record reflects that over the years, the Division offered J.J. a number of services to address his serious problems: it offered anger management classes and substance abuse evaluations and treatment services to help him address the alcohol abuse that either led to or exacerbated the chronic domestic violence. It recommended to J.J. that while he was incarcerated, he should take advantage of programs related to anger management and substance and drug abuse.

DYFS also considered numerous relatives and friends of J.J., by the judge's estimate "over fourteen perhaps as many as sixteen people," for placements for the children. None was able to serve in that capacity.

Finally, the court concluded that termination of the parental relationship would not do more harm then good. One of the paramount considerations was that both children had a very limited relationship with their father and as pointed out by the Law Guardian, "what limited time they did spend together was filled with violence, drunkenness, injury, arguments and fear." More objectively, J.J. had never served as the primary caregiver for either of the children. He had stopped living with the older child when she was six or seven months old and never lived with her thereafter. He had never lived with the younger daughter except perhaps during a brief period when R.C.G. had weekend visitation with the girls and J.J. may have been present, even though he was at the time barred from having contact with R.C.G. By the time of the trial, C.C.J. and C.R.J. had been in an out-of-home placement for periods of approximately five years and four years respectively.

Defendant complains that the bonding expert did not even conduct a bonding evaluation between him and the girls. Given his near total absence from their lives, a significant portion of which was due to his incarceration, we fail to see how any prejudice could have been derived from the absence of such a bonding evaluation. In a related vein, J.J. contends that the trial court improperly concluded that DYFS was not required to furnish services because he was in jail for most of the time. We agree that there is no authority for an outright denial of services to a parent who is incarcerated, and to the extent the judge's comments may be so understood, we reject them. On the other hand, we understand the comments to recognize that implementation of most rehabilitation services would be difficult and probably ineffective or duplicative while the parent is incarcerated. In this instance, however, rehabilitative services, including the search for alternative placements, were ongoing.

The final best interests criterion mandates that termination of parental rights not do more harm then good. The experts opined that the oldest daughter's memories of her father are characterized by sadness and violence, owing to her presence during the stormy conflicts between her parents. The trial court accepted the opinions of the expert that the children had, indeed, bonded with their foster parents and that "to disrupt them from that would result in severe, long and enduring emotional and other harm to these children."

The foster parents have expressed a desire to adopt the children and the expert witnesses testified that both children are bonded to their foster parents and to each other. The children have come to rely upon the foster parents to meet their developmental and emotional needs. Under such circumstances, removing either of the children from their foster home would undoubtedly result in trauma to the children that would be enduring and interfere with their continued development.

Based upon our independent review of the record, we are satisfied that there was competent and reasonably credible evidence to support the trial court's conclusion that all four criteria of the best interests test were shown by clear and convincing evidence. Accordingly, we affirm the order terminating J.J.'s parental rights and awarding the guardianship care, custody and control of C.C.J. and C.R.J. to DYFS to consent to the adoption of said children.

Affirmed.

 

A revised order of guardianship was filed on January 19, 2006, which terminated the parental rights of R.G.M.

A third child was also born to J.J. and R.C.G. on March 8, 2004. That child was born significantly premature; he weighed only one pound at birth. That child died on July 24, 2004.

(continued)

(continued)

2

A-2682-05T4

RECORD IMPOUNDED

 

August 29, 2006