NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4330-04T44330-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Appellant,

v.

R.S.,

Defendant-Respondent,

_________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

M.A.S., A Minor.

_________________________________________________

 

Submitted December 20, 2005 - Decided January 19, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, FG-13-72-03.

Peter C. Harvey, Attorney General, attorney

for appellant (Michael Haas, Assistant

Attorney General, of counsel, and Scott J.

Kieserman, Deputy Attorney General, on the

brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Patricia Nichols,

Assistant Deputy Public Defender, on the

brief).

Yvonne Smith Segars, Public Defender,

Law Guardian for minor child (Caridad

Argote-Freyre, Assistant Deputy Public

Defender, on the brief).

PER CURIAM

The New Jersey Division of Youth and Family Services (DYFS) appeals from the denial by a Family Part judge of its petition to terminate the parental rights of R.S., the natural father of M.A.S. We reverse.

M.A.S. was born on March 20, 2001 and was placed in foster care with the consent of his mother, T.S. His mother declined to identify the child's father. At the time, the mother was married to A.S., who consistently refused to submit to a paternity test. His lack of paternity was not conclusively determined until a test was finally accomplished on March 13, 2002, approximately one year after the child's birth.

In May 2001, the mother identified R.S. to a representative of DYFS as the likely father of the child. However, she provided no address. Similar statements were made by the mother to a psychologist, Dr. Roger T. Raftery, in June and July 2001, but again, no address was given. During this period, R.S. was living in Florida and, despite his admitted knowledge of potential fatherhood, he made no effort to contact DYFS and was in large measure unreachable.

The record reflects that in February 2002, the mother again identified R.S. as a potential father of her child, and DYFS was able to locate a temporary address for him in Beachwood, New Jersey. DYFS scheduled a paternity test for R.S. and sent a letter to him at the Beachwood address, where he was known to occasionally stay, informing him of the test. R.S. did not appear, although it is not clear that he received the notification that was provided. In March 2002, DYFS conducted a legal search for R.S. without success.

On May 21, 2002, after receipt of confirmation that A.S. was not the child's father and after services provided to M.A.S.'s mother had proven unsuccessful in rendering her fit as a parent, DYFS filed a complaint seeking guardianship of the child. In June, R.S. was located by DYFS in Florida, and he agreed to a paternity test, but failed to appear for it. At the time, R.S. refused to provide a home phone number, and upon investigation by DYFS, it was found to be unlisted.

Further contact with R.S. was made by the court in September 2002, and as the result of a court-ordered paternity test conducted on October 2, 2002, the paternity of R.S. was confirmed.

In the meantime, in September 2002, M.A.S. had been placed in his second potential adoptive home, the first having proven unsuccessful.

In early November 2002, DYFS provided information to R.S. regarding his child at his request, and on November 25, 2002, R.S. informed a representative of DYFS by telephone that he wished to surrender his rights. Nonetheless, DYFS informed R.S. that the child's foster mother had expressed a desire that M.A.S. know his father, and that it would therefore attempt reunification.

In January 2003, when the child was almost two years old, R.S. informed DYFS for the first time that he wished his parents to care for the child, and he requested that an evaluation be conducted of them by Florida authorities. A court order requiring the evaluation was entered on February 26, 2003.

DYFS did not forward a request for an evaluation to Florida until October 2003. In the interim, on July 16, 2003, R.S. had been arrested for domestic violence against his fiancée and for child abuse, having allegedly thrown his son on a concrete floor. As a result of the charges, the two children of R.S. then residing with him were placed with R.S.'s parents.

Although an interstate evaluation of the paternal grandparents was reported in January 2004 as positive, in February the grandparents ruled out placement of M.A.S. with them because they were already caring for R.S.'s other two children.

In March 2004, when M.A.S. was three years old, the parental grandmother requested the removal of R.S.'s two other children from her custody, and soon thereafter she expressed renewed interest in caring for M.A.S.

At approximately the same time, M.A.S., who remained with his second potential adoptive mother, was diagnosed as suffering from fetal alcohol syndrome, ADHD, behavioral problems, dysgraphia (an inability to write), and autistic features. Additionally, his emotional I.Q. was determined to be low. By April 2004, M.A.S. had experienced a severe deterioration of his physical and emotional condition, which was diagnosed as childhood disintegrative disorder, and his foster mother had quit her employment in order to provide fulltime care for him. At this time, M.A.S. resumed the need for diapers and commenced hand flapping gestures, face grimaces and eye ticking. He lost interest in food and no longer expressed hunger. His speech and language development became a concern, his behavior became negative, and he expressed overstimulation from noise and crowds. These conditions led to his termination from day care. Since that time, remedial treatment has been provided to M.A.S. through Volunteers of America and Early Intervention Services.

In a report dated May 26, 2004, consulting psychologist Chester Sigafoos expressed the opinion that M.A.S. was strongly attached to his foster mother, the foster mother was essential to the child's care, and without her, he would be institutionalized.

At the time of trial, which commenced on June 22, 2004, R.S. had been convicted of child abuse, had violated a no-contact order, and was serving a jail sentence. He participated in the trial by telephone. During its course, R.S. confirmed that he had visited M.A.S. on only one occasion, on April 4, 2003, although he had made one additional request to see the child later that year. Yet, he admitted that he knew that he was the father of M.A.S. when he left New Jersey for Florida in 2000, before the child's birth.

Evidence established that M.A.S. had been with his foster mother since the age of seventeen months and, despite his massive disabilities, she sought to adopt him. It was undisputed that M.A.S. had developed an enduring bond to his foster mother, and that he could not be removed from her care without suffering serious and long-lasting harm.

In a written opinion dated February 1, 2005, issued approximately seven months after the trial, the Family Part judge dismissed the State's complaint for termination of parental rights. In that opinion, the judge separately analyzed the four prongs of the "best interest" test codified in N.J.S.A. 30:4C-15.1. When discussing the first prong -- that the child's safety, health or development had been or would continue to be endangered by the parental relationship -- the judge found that R.S. had shown "no interest" in providing parental care to M.A.S., that he was aware of the possibility that he was the child's father prior to his birth, that he had failed to cooperate with paternity testing, and that he had failed to maintain any contact with DYFS. The judge found on that basis that DYFS had met its burden of establishing endangerment by clear and convincing evidence, stating:

It is obvious from his actions or lack thereof that the defendant has shown little interest in caring for the child. Although visitation was held in April, 2003 and was requested in September, 2003 the defendant's inaction with regards to the child during these tender years is certainly the type of injury . . . that can constitute injury sufficient to terminate parental rights.

As to the issue of safety, now referred to in the statute, the court notes the fact that the defendant served approximately 9 months for an incident where he threw another one of his biological children to the ground.

The court found additionally that DYFS had met its burden of proof on the second statutory prong: that "[t]he 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." The judge found:

In the instant case, the defendant [M.S.'s] attitude has gone from one of avoidance of the issue of paternity, to an intent to surrender parental rights, to a desire to have his parents evaluated, to a willingness to have both he and his parents evaluated, and finally to a realization that he is not able to care for the child. The court is compelled to draw from the evidence that the defendant has not reached a point nor is he likely to reach a point where he would provide a parenting role to the child.

Addressing the harm to M.A.S. resulting from separation from his foster mother, the court stated:

The Division produced Dr. Chester E. Sigafoos who conducted two bonding evaluations of the foster mother . . . and the child. Dr. Sigafoos testified that in the first evaluation which took place on June 25, 2003 each showed no aversion to being with the other. He also opined that the foster mother was the psychological parent at the time of the evaluation. In the second evaluation on May 26, 2004 he noted that the child had problems with acting out, spitting, biting, and acting inappropriately. Although not specifically engaged to evaluate the child, Dr. Sigafoos noted special needs of the child in that he diagnosed disintegrative disorder and indicated that he was preschool disabled. He testified that this involves psychosis and breakdown. Dr. Sigafoos indicated that childhood autism develops into schizophrenia. He explained the problems to the foster mother who was aware of the research. He also testified if the child were to be removed "you are looking at institutionalization."

Dr. Sigafoos also opined that all the child knows is the foster parent. If the child were to be removed enduring harm would result. It was his opinion that the child "would fall apart" and that the new caretaker would have problems. The court notes that [the foster mother] testified that the child has been with her since he was 15 months old and that [it] is her intention to adopt if parental rights were terminated. She also offered post-adoption visitation. There was no expert testimony adduced by the defendant to refute Dr. Sigafoos.

The court likewise found that DYFS had demonstrated by clear and convincing evidence that termination of parental rights would not do more harm than good, as required by the fourth prong of the statute's best interest test.

Dr. Sigafoos was retained by DYFS as the psychological expert in this case. The defendant offered no expert testimony. There was no bonding evaluation conducted with the father presumably because there was no relationship, the father having only seen the child once in April 2003. The impact of removing the child from the foster home was discussed by the court under prong two and need not be repeated here.

Despite these findings, the court dismissed the petition by DYFS for termination of M.S.'s parental rights, determining that DYFS had presented insufficient evidence that it had made reasonable efforts to provide services to help R.S. correct the circumstances that led to M.A.S.'s placement outside the home and that alternatives to termination of parental rights had been considered. See N.J.S.A. 30:4C-15.1a(3). In this regard, the court noted that DYFS had not "aggressively" sought to establish paternity. The judge found that DYFS had not obtained a bench warrant to compel the mother's husband, A.S., to submit to a blood test. Additionally, while recognizing R.S.'s "transient lifestyle and the difficulties in locating him," the court noted that despite the mother's identification of R.S. as a potential father of the child in July 2001, it was not until February 2002 that DYFS attempted to find him and to arrange for a paternity test that, because of R.S.'s lack of cooperation, did not occur until October 2002.

The court further recognized R.S.'s lack of interest in his child for the first two years of the child's life and initial determination in November 2002 to surrender his parental rights. Nonetheless, the court found the eight-month delay by DYFS in obtaining an interstate evaluation, once R.S. had sought it, to be "inexcusable and unexplained," and, while recognizing the paternal grandparent's initial reluctance to care for M.A.S. and their determination to relinquish custody of the two children for whom they had been providing care, he suggested that the paternal grandparents appeared to be "perfect parents" as the result of evidence of their financial and emotional strengths, their regular church attendance, their prior adoption of R.S., and the fact that both had doctorates in ministry.

The court observed that if R.S.'s paternity had been more rapidly established and if the interstate evaluation that the father eventually requested had been more quickly performed, the child could have been placed with the grandparents sooner, the "paternal grandparents would not have been faced with having to decide between which of their grandchildren they were to provide care," and bonding between the foster mother and M.A.S. could have been avoided. As a consequence, the court found that DYFS had fallen "woefully short" of its burden of demonstrating the provision of services to R.S., justifying a denial of its termination petition. The judge did not further discuss the extent of the harm to M.A.S. resulting from his decision or reconcile that decision with R.S.'s two-year abandonment of his child, his finding that R.S. was unlikely to reach a point where he could act as parent for M.A.S., or the fact of R.S.'s conviction for child abuse and his imprisonment for that offense.

We affirm the court's determination that DYFS offered clear and convincing evidence with respect to the first, second and fourth prongs of N.J.S.A. 30:4C-15.1a. However, because we find the court's analysis of the third prong as it related to the evidence presented and to the statutory test as a whole to have been flawed, in that the court failed to give primacy to the best interests of M.A.S. as the governing statute and case law require, and because we find additionally that the interests of justice require our intervention, we reverse. Rova Farms Resorts v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Division of Youth and Fam. Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

In reversing, we recognize that the four prongs of the best interest test, initially formulated for use in termination proceedings by the Court in Division of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) and codified in N.J.S.A. 30:4C-15.1a, cannot be viewed in isolation from each other, as occurred in this case, but must be interpreted together in a non-punitive manner that advances the interests of the child entrusted to DYFS's care. In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999); In re Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999). When the court's actions are viewed in that light, the subversion of the statutory goal becomes clear. As a result of the court's decision, any facilitation of M.A.S.'s best interests has been thwarted and, instead of the prospect of a permanent nurturing home, he faces severance of emotional ties to the only parent figure he has known and the potential for psychological disintegration and institutionalization.

We do not condone the delay by DYFS in securing an interstate evaluation of M.A.S.'s paternal grandparents as his caretakers -- a defect in the performance on the part of DYFS that was of primary importance to the court in reaching its decision. However, we find that the weight accorded by the court to that delay must be balanced by other evidence presented at the trial of this matter and noted by the judge, including the lack of any interest by R.S. in M.A.S. until January 2003 when the child was almost two years of age, his non-disclosure of his whereabouts in another state and rejection of attempts by DYFS to establish contact and parentage, R.S.'s criminal mistreatment of another of his biological children, and his admission that he could not presently or in the future care for M.A.S. as a parent. We consider as well the delay in any expression of interest by the paternal grandparents in caring for M.A.S.

Even if we were to assume that R.S.'s parents would voluntarily retain custody of M.A.S. in his severely impaired condition, despite evidence that they had surrendered custody of two other grandchildren, transfer of M.A.S.'s custody to those grandparents could not reasonably be regarded as an appropriate or necessary interim step to eventual reunification between M.A.S. and his natural father. The court found that R.S. was unfit as a father, and no evidence suggests a future change in that status. Thus, the required permanency in M.A.S.'s situation would not be achieved by his removal from his foster mother's care and transfer of his custody to his parental grandparents. K.H.O., supra, 161 N.J. at 357-59; In re Guardianship of J.C., 129 N.J. 1, 26 (1992); C.S., supra, 367 N.J. Super. at 111. Further, although we recognize the deference generally given to familial custodial arrangements, in the circumstances of this case, that deference cannot be absolute. Interest by relatives in M.A.S.'s care simply comes too late. Moreover, evidence is lacking that M.A.S. would be better off with his parental grandparents than with his foster mother, in whose loving custody he has long resided. S.R. v. Div. of Youth and Fam. Servs., 311 N.J. Super. 431, 436 (App. Div.), certif. denied, 157 N.J. 542 (1998).

We thus do not evaluate the evidence relevant to the third prong of the best interests test in a manner similar to that of the trial judge, or reach the draconian result that he did. Further, we find, as we previously stated, that any weight accorded to evidence on this aspect of the best interest test pales in comparison to the weight of other evidence relating to M.A.S.'s present and future well-being. We cannot accept in this case a determination that harm has befallen M.A.S. as the result of the conduct of his father, that the father is incapable of effecting a cure, that termination of his rights would not do more harm than good, and that serious and enduring emotional and psychological injury would befall M.A.S. were he to be separated from his foster parent, yet affirm a denial of DYFS's petition to terminate the father's rights. To do so would be inimical to M.A.S.'s interests as described at trial, without contradiction, by Dr. Sigafoos.

 
We therefore reverse the determination of the trial court and remand the matter for entry of an order terminating the parental rights of R.S.

Additionally, a final restraining order had been entered against R.S. arising out of an incident of domestic violence against T.S., M.A.S.'s mother. The order was entered in July 2002 and remains in effect.

The mother of M.A.S., who had defaulted, voluntarily surrendered her rights to M.A.S. on June 24, 2004.

Additionally, N.J.S.A. 9:17-43e establishes a rebuttable presumption that a man has knowledge of his paternity and the birth of his child if he had sexual intercourse with the biological mother within 300 days of the child's birth. R.S. had engaged in sexual relations with the mother of M.A.S. during the relevant time frame while living as a border in the home maintained by her and her husband.

We are troubled by this delay, which does not accord with the goal of effectuating the prompt permanent placement of children in DYFS's legal custody. See, e.g., N.J.S.A. 30:4C-15(f) (requiring that a petition for termination of parental rights be filed no later than when a child has been in placement for fifteen out of the most recent twenty-two months); N.J.S.A. 30:4C-53.1 (expressing legislative goal of permanency); N.J.S.A. 9:6B-1j (requiring placement plan to facilitate goal of permanency); see also New Jersey Div. of Youth and Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.)(discussing statutory standards), certif. denied, 180 N.J. 456 (2004).

On appeal, M.S. sought to offer the opinion of psychologist Dr. Frank J. Dyer, who was retained after the trial took place. We granted a motion by DYFS to suppress that post-hearing report.

It is unclear to us by what authority, if any, such a warrant could be issued.

The withholding of parental attention and care is cognizable as evidence of parental irresponsibility. D.M.H., supra, 161 N.J. at 379-80; K.H.O., supra, 161 N.J. at 353; In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992); A.W., supra, 103 N.J. at 604-05.

N.J.S.A. 30:4C-12.1 requires DYFS to initiate a search for relatives suitable for placement within 30 days of its acceptance of a child into its custody. Because R.S.'s whereabouts were initially unknown and because he avoided confirmation of his parentage, his parents could not reasonably have been considered for resident placement until October 2002 at the earliest, a date after M.A.S. had been placed with his present foster mother. R.S.'s disinterest in his child and failure to make a timely plan for his future further impeded any placement with them.

(continued)

(continued)

17

A-4330-04T4

RECORD IMPOUNDED

January 19, 2006