NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4959-04T44959-04T4

IN THE MATTER OF THE

GUARDIANSHIP OF M.A.W.,

A Minor.

____________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.W.,

Defendant,

and

J.M.,

Defendant-Appellant.

_______________________________________

 

Submitted December 5, 2005 - Decided January 19, 2006

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FG-15-37-04 and FN-15-102-03.

James N. Butler, Jr., attorney for appellant.

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor M.A.W. (Christopher A. Huling, on the brief).

PER CURIAM

Defendant J.M. appeals from an order filed April 21, 2005 terminating his parental rights to M.A.W. and awarding guardianship of the child to plaintiff Division of Youth and Family Services (Division). We affirm.

The scope of our review in a non-jury case is limited. We will not disturb the trial judge's findings of fact unless "they are so wholly unsupportable as to result in a denial of justice." New Jersey DYFS v. P.P., 180 N.J. 494, 511 (2004)(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). The trial judge's findings are binding on appeal when they are supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974).

Here, following the trial, Judge Barbara Ann Villano rendered a thorough and comprehensive decision from the bench. She found that the Division had shown that the termination of defendant's parental rights was in the child's best interests. She found that the Division had proven, by clear and convincing evidence, each of the four factors enumerated in N.J.S.A. 30:4C-15.1(a) and Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), for the termination of parental rights. We are satisfied that the judge's findings of fact are fully supported by substantial credible evidence in the record. We therefore affirm the judgment substantially for the reasons stated by the judge in the decision placed on the record April 21, 2005. We add the following.

M.A.W. was born on November 8, 2002. J.W. is the child's

birth mother. Defendant informed the Division on September 10, 2002 that J.W. was six months pregnant and she was smoking crack cocaine on a daily basis. J.W. gave birth to M.A.W. less than one month later. J.W. admitted using cocaine and marijuana while she was pregnant. M.A.W. tested positive for cocaine. He was found to be medically fragile and he was removed to a home where he would be provided with special home services. In January 2003, the child continued to suffer from withdrawal. He periodically experienced seizures. According to a pediatric progress report dated February 18, 2003, the child remained medically fragile. In April 2003, a test confirmed that defendant is M.A.W.'s father.

Defendant was convicted of conspiracy to dispense drugs and sentenced on September 27, 2002 to two years of probation. Previously, defendant pled guilty to possession of CDS with intent to distribute and he was sentenced on January 16, 1998 to four years in jail. In June 2003, defendant's urine was found to have minute traces of cocaine. Defendant informed the caseworker that he might have touched money that had cocaine on it.

In July 2003, Dr. Alan J. Lee made a psychological evaluation of defendant. In his report concerning the evaluation, Lee stated that defendant was then 35 years old. He was the father of four children from three different relationships. Lee noted that defendant had been incarcerated for a drug related offense and he was released in 2001. Defendant informed Lee that he had been incarcerated for driving without a license, for possession of CDS and for fighting.

Defendant also informed Lee that several restraining orders had been entered against him for the protection of certain persons, including two of his former paramours. Defendant reported to Lee had he had been arrested several times, had numerous motor vehicle violations, committed aggravated assault and made unlawful use of a credit card. Lee said that at the time of the evaluation defendant apparently was continuing to drive without a license and was working as a limousine driver. Defendant also was working as a handyman and a bodyguard.

Lee found that defendant presented as an individual with "rather maladaptive personality traits." He was largely free of any kind of severe or acute major mental illness but his "ways of thinking and reasoning are flawed." Lee noted that defendant had a history of substance abuse. He had a significant history of antisocial behavior with multiple criminal charges and incarcerations. Defendant also had little personal insight or awareness and had "little genuine motivation to make permanent and lasting changes." Lee stated that defendant tested positive for cocaine in May 2003 but defendant claimed that he had not used cocaine in about a year and a half. Lee noted that defendant had reported that he may have touched money with traces of cocaine but Lee wrote, "Such an explanation may be possible, but seems improbable."

Lee concluded that defendant's risk for criminal recidivism and drug use was significantly elevated. Lee opined that defendant was not capable at the time of acting as an independent caretaker for M.A.W. but suggested certain programs that might affect some significant changes in his behavior and ability to parent the child. He added, however, that the prognosis for such changes was "realistically guarded."

Lee made another psychological assessment of defendant in January 2005. At that time, defendant advised Lee that his drivers' license was valid and he had plans to attend a tractor-trailer driving school. In his report, Lee noted that, although M.A.W. had been born in November 2002, he did not see the child until March or April of 2003. Lee stated that defendant continued to exhibit a number of rather deep and ingrained maladaptive personality traits. He showed a heightened level of psychological tension, depression and anxiety. Defendant tended to be "highly hedonistic," "deeply self-absorbed," and "generally quite immature." Lee noted his concern with defendant acting as an independent caregiver to a minor child because of his history of substance abuse and repeated involvement with the criminal justice system. Lee recommended against reunification of M.A.W with defendant and suggested that the Division engage in other permanency planning.

Lee additionally performed evaluations of defendant's relationship with M.A.W. in 2004 and 2005. Lee found that the child was not bonded to J.M. and that a termination of defendant's relationship with M.A.W. was not likely to have any "significant enduring or irreparable psychological harm" to the child.

At trial, Lee testified about his evaluations. Lee said that in his 2003 evaluation, he noted his concerns as to defendant's ability to independently care for the child. He recommended that defendant attend parenting classes, an anger management program, a domestic violence program, and follow through with substance abuse treatment recommendations. Lee also recommended individual counseling or psychotherapy to help improve defendant's behavioral controls and to develop some insight and awareness.

Lee further testified that during his 2005 evaluation, defendant had reported that he completed an anger management program and a parenting skill program. He also began "some form of individual counseling." Lee said that defendant tested positive for cocaine in December 2004 and defendant told Lee he would like to attend an intensive outpatient program five times a week. Lee stated that he had a number of concerns about defendant's overall functioning and recommended against his reunification with the child.

Lee additionally testified about his observations in the bonding evaluations performed in 2004 and 2005. He noted that M.A.W. looked at defendant with a "sense of trepidation" on his face. Lee said that the child screamed several times. Lee opined that the reason for the child's reaction was a "lack of familiarity, a lack of connection or bonding by the minor child with the birth father in this case."

Lee also asserted that, at the time of the 2004 evaluation, there was no evidence of any kind of "significant psychological bond" between defendant and M.A.W. and there was "a very low risk of any kind of significant, enduring or irreparable psychological harm to the child if that relationship were to be terminated or severed." Lee noted that in the 2005 evaluation, the child showed anger and defiance of his father's statements and "was seen as pushing away" from defendant. Lee's opinion regarding the relationship between defendant and M.A.W. remained the same after the 2005 evaluation.

Judge Villano properly found that M.A.W.'s health and development have been endangered by his relationship with defendant. N.J.S.A. 30:4C-15.1(a)(1); A.W., supra, 103 N.J. at 604. The judge noted that defendant had been involved with drugs for virtually the whole of his adult life. Defendant was convicted for drug related offenses. He had been incarcerated and he was also placed on probation. Defendant chose to have a child with a woman who was involved with drugs and who severely harmed the child by using drugs during her pregnancy. After M.A.W. was born, he was immediately removed from the care of his mother. At no point after tests confirmed that defendant was the father did he provide the child with a safe and stable home. As Lee testified, defendant simply was not capable of independently caring for a minor child. In our view, the evidence clearly and convincingly established that M.A.W. had been harmed by his relationship with defendant.

There was also clear and convincing evidence to support the judge's finding that defendant is unwilling or unable to eliminate the harm to the child. N.J.S.A. 30:4C-15.1(a)(2); A.W., supra, 103 N.J. at 605. The judge noted that defendant continued to test positive for drug use and failed to seek treatment until January 2005. There was no evidence that defendant ever followed through with treatment for his drug use. The judge also found that defendant was unwilling or unable to walk away from a lifestyle that he had chosen with drugs and his casual relationships with a number of different women, with whom he had children. The judge found that defendant is not the kind of person that can capably parent M.A.W. She stated, "[Defendant] is not able to provide a safe or stable home for the child, because he can't provide it for himself." There is ample support in the record for the judge's finding.

In addition, the judge noted that the Division had provided visitation but defendant did not regularly visit the child. Indeed, defendant did not see the child between February and April 2005. Moreover, defendant did not initially show any interest in drug treatment. The judge stated that counseling would have been provided but defendant's contacts with the Division were sporadic. Based on this evidence, the judge properly determined that the Division made reasonable efforts to provide services to assist defendant in regaining custody of the child. N.J.S.A. 30:4C-15.1(a)(3); A.W., supra, 103 N.J. at 608.

There also is support in the record for the judge's finding that that termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4); A.W., supra, 103 N.J. at 610. Lee testified that there was no significant bond between defendant and M.A.W. Lee also testified that termination of defendant's parental rights would not cause any lasting harm to the child. The judge's finding on this factor is unassailable.

Defendant does not specifically take issue with Judge Villano's findings. He argues, however, that he was denied the effective assistance of counsel in the termination hearing. Defendant asserts that his attorney did not request an adjournment of the trial and failed to present the judge with evidence that defendant had completed an inpatient drug program, anger management classes, parenting classes and "tractor-trailer training."

In support of this contention, defendant relies upon the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which establishes the test for determining whether a criminal defendant has been denied the effective assistance of counsel as guaranteed by the Sixth Amendment. However, the Sixth Amendment does not apply to a proceeding seeking the termination of parental rights. Even so, "indigent parents who are subjected to proceedings which may result in either temporary loss of custody or permanent loss of parental rights have a constitutional right to appointed counsel." In re Guardianship of Dotson, 72 N.J. 112, 123 (1976).

We are not convinced that trial counsel's performance in this case was constitutionally deficient. The judge noted in her decision from the bench that defendant had been advised of the trial date. Defendant called the court on the morning of the trial and advised that he could not "get off work." The judge noted that defendant could have called previously and failed to do so. The Division was ready to proceed and Lee was on hand to testify. In the circumstances, counsel cannot be faulted for failing to seek an adjournment of the trial.

As for counsel's failure to present evidence, it should be noted that Lee testified that defendant informed him that he had completed anger management and parenting classes. There was no evidence regarding defendant's completion of an inpatient drug program or "tractor-trailer training," but we are not convinced that any testimony or evidence on those points would have been sufficient to counter the overwhelming evidence which supported the judge's finding that termination of defendant's parental rights was in M.A.W.'s best interests.

 
Affirmed.

The April 21, 2005 order also provides for the termination of J.W.'s parental rights to M.A.W. J.W. did not appear at trial. The judge found that J.W. had essentially abandoned the child. J.W. has not appealed the order.

(continued)

(continued)

12

A-4959-04T4

RECORD IMPOUNDED

January 19, 2006