NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.C., L.J. and Q.P.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0064-08T40064-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.C., L.J.,

Defendants,

and

Q.P.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

J.L.C., M.Q.C, J.R.C., J.S.C.

and K.K.C.,

Minors.

_____________________________________

 

Submitted March 30, 2009 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-47-08.

Yvonne Smith Segars, Public Defender, attorney for appellant Q.P. (Deric Wu, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michelle Mikelberg, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for Minor K.K.C. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant Q.P. appeals from an order of the Family Part dated June 26, 2008, terminating his parental rights to his biological child K.K.C. We affirm.

I

We begin with a brief overview. K.K.C., was born to C.C. on June 20, 2004. She has eight children, five of whom are in the legal custody of the Division of Youth and Family Services (DYFS) due to C.C.'s persistent substance abuse problems. Q.P. is the father of K.K.C., but not any of C.C.'s other children. In the guardianship trial from which this appeal arises, the Division sought to terminate parental rights as to K.K.C. and four of his siblings.

Although DYFS was involved with K.K.C. since his birth, C.C. initially identified another man as K.K.C.'s father, and later misinformed DYFS as to defendant's whereabouts. In 2007, the agency located defendant, who had been incarcerated since before K.K.C. was born and remained in prison, and served him with a guardianship complaint concerning K.K.C. Prior to that time, the agency had provided extensive services to C.C., despite which she was unable to overcome her drug problems and become a fit parent. Consequently, her parental rights to all five children were terminated after the guardianship trial. Much of that trial, and the associated evidentiary record, focused on C.C. and K.K.C.'s four siblings, who are not defendant's biological children. In the remainder of this opinion, we focus on the portion of the hearing that concerned defendant and K.K.C.

At the guardianship trial, the State presented testimony from a psychologist, Dr. Andrew Percy Brown, III. Dr. Brown explained that he could not perform a bonding analysis of defendant and the child, because defendant had been incarcerated since before K.K.C.'s birth and had never met the child. However, Dr. Brown performed a psychological examination of defendant.

Significantly, Dr. Brown noted that in his interview, defendant told Brown that he had participated in drug treatment and had stopped using drugs years before his incarceration. On the other hand, defendant told his own testifying expert, Dr. Gerard Figurelli, that he had used marijuana "just prior to his incarceration" and had never attended drug treatment. Dr. Brown opined that defendant might need drug treatment upon his release from prison.

Defendant also told Dr. Brown that he had been in trouble with the law since age eleven and had been arrested "about ten times" for drug possession, "strong-arm robbery, assault, breaking and entering, burglary and drug possession with intent to distribute." This was of concern because it demonstrated "nearly a twenty-year history of involvement with the legal system and problems staying out of confinement," plus a lack of availability to parent K.K.C. Brown opined that defendant "cannot provide an environment that is sustainable and predictable for the child." Further, it was significant for the child that defendant would not be eligible for parole until April 2010, or two years from the trial date:

[It] is significant, yes, because his child, by that point in time will be . . . about five years old. He has never met the child. The child is . . . probably already demonstrating bonding with the caretaker. . . . This child is in an environment that is sustainable and predictable.

Based on defendant's history of multiple serious and violent crimes, Brown also opined that defendant had an antisocial personality. He also had no sustained employment history and was unlikely to be able to provide for a child.

Brown administered a series of psychological tests to defendant, including the Child Abuse Potential Inventory (CAP), the Personality Assessment Screener, the Culture-Free Self-Esteem Inventory and the Raven Colored Progressive Matrices. Based on his CAP score, defendant "presents with a significant elevation on the abuse factors," meaning that "he does manifest a significant potential to indulge in physical child abuse." He also scored high on the rigidity scale meaning "that he manifests an authoritarian parenting style." Defendant also had a negative outlook on life and lacked "emotional ties," which "could interfere with the bonding process with the child."

According to Brown, defendant's difficulty in maintaining emotional stability and "feelings of worth in social relationships" made him more likely to "feel upset many times, upset without knowing why." He would be likely to be "moody" with the child and to be unable to deal with childhood behaviors that might be stressful. He would be unable to deal with the child in a predictable manner. Defendant also showed moderate difficulty with "managing his anger."

Based on all of the test results, Dr. Brown concluded that defendant "has a significant potential to engage in physical child abuse." He believed that even if defendant were released from jail immediately, he would be unable to successfully parent K.K.C. "He's not prepared to parent. He does not have job training. He has not completed substance abuse rehab. He continues to manifest significant psychological issues. Residentially, I don't think he's in a position to provide an environment for the child. . . ."

Dr. Brown also discussed the tremendous importance to a child of bonding and a sense of permanency, and the harm to a child from growing up without those factors. He opined that K.K.C. was bonded with his foster parents and opined that Mrs. R., the foster mother, had become his psychological parent. He further testified to his observation of Mrs. R.'s excellent parenting skills. He supported her proposed goal of adopting K.K.C., as well as her goal of adopting several of his siblings.

According to Dr. Brown, K.K.C. would suffer no harm if defendant's parental rights were terminated. On the other hand, he explained why remaining in foster care would cause harm to the child and why adoption would be beneficial. Dr. Brown opined that due to the child's need for permanency, it would not be in his best interest to remain in foster care until defendant was released from prison.

The State also presented testimony from a DYFS case worker, Shannon Paris. She testified that the child's mother had initially told DYFS that another man was K.K.C.'s father. When they learned that defendant might be the father, she began searching for him and discovered that he had been incarcerated since 2003. She arranged for him to be served with the guardianship complaint, and otherwise all other contact with him had been through the court.

According to Paris, K.K.C. and his siblings were physically removed from their mother's custody in 2006, due to her persistent drug abuse. K.K.C. had been in his current foster home since 2007. She confirmed that the foster mother wished to adopt K.K.C., as well as three of his siblings. Paris testified that K.K.C. had not visited with defendant in prison, and that the child could not be placed with his father while he was incarcerated. She testified that DYFS had offered defendant a psychological evaluation and DNA testing to determine parenthood, although the agency had not provided him with parenting classes or counseling services aimed at reunification.

DYFS had contacted one of defendant's relatives to determine whether she might be an appropriate placement resource. However, this relative was uncooperative and was ruled out as a caretaker. On the other hand, Paris testified that she had observed interaction between K.K.C. and his foster mother and she could see that they had a very close, loving relationship.

Defendant testified that he had been incarcerated since 2004, and was currently at South Woods State Prison. Prior to his incarceration, he had been "close" with K.K.C.'s mother, but did not realize that she was pregnant with his son. He was served with the guardianship complaint in 2007. He suggested his sister to DYFS as a possible placement for the child, but was advised that she "didn't work out." He believed that had he known of the guardianship proceedings earlier, he might have been able to suggest other relatives as possible caretakers.

Defendant expressed his concern that K.K.C.'s mother had "[given] up on him" and defendant felt that "it wouldn't be right for me to just give up on my son because if I was to sign away my parental rights, that would be me neglecting my son." He wanted to be a part of his son's life. According to defendant, he believed he had matured while in prison. He was on the waiting list for parenting classes, and was in the process of obtaining his high school diploma.

Asked how he would care for his son if he had custody of him after his release from prison, defendant testified that he would care for him "to the best of my ability." However, he also candidly expressed his understanding that the foster mother was "a very good figure to [K.K.C.] so I wouldn't . . . take my son away from her." Asked if he wanted "physical custody of your son," he responded that he "would want my son in my life." However, he expressed his understanding that

[H]e loves [the foster mother], so why would I do that to her and him, also? I'm not here to hurt my son, but I also want to be in my son's life. . . . Because by me thinking I can't have my son is killing me inside.

Defendant also testified that he understood that he "would have to get myself together, also" once released from prison.

On cross-examination, he admitted to his long criminal history, including drug dealing, car theft, assault and strong-arm robbery. He contended that he had not used illegal drugs since he was a teenager. However, he admitted that one of the mitigating factors cited in his most recent sentencing was his alleged drug addiction. He contended that the reference was to his having been intoxicated during the crime.

Defendant also presented testimony from Dr. Figurelli, a psychologist, who had performed an evaluation of defendant's "capacity to parent" and had assessed possible services he or his family might need. Dr. Figurelli administered a series of psychological tests, including the Personality Assessment Inventory, the Problem Behavior Inventory, and the Beck scales. These tests revealed no psychological disorders, although defendant "displayed some antisocial traits in the overall organization and functioning of his personality." According to Dr. Figurelli, these would not affect defendant's ability to parent K.K.C., particularly if he had a chance to "participate in a process of rehabilitation to address the underlying causes of his history of offending behavior."

Defendant admitted to a "brief history of use of marijuana" and a "history of alcohol use." However, Dr. Figurelli's interview with defendant revealed no evidence of drug addiction or alcoholism. Defendant indicated he had not undergone any drug treatment in the past.

Defendant told Dr. Figurelli that he wanted to be part of his son's life and to act in a parental role. Dr. Figurelli questioned Dr. Brown's conclusion that defendant was likely to be an abusive parent, because he contended Dr. Brown was using inappropriate tests to make that determination. He did not believe it was possible to draw a conclusion one way or another based on a single interview, but he believed defendant could benefit from rehabilitation services to address the "underlying causes of his offending behavior." He also testified that defendant would need to abstain from drugs and alcohol, find appropriate housing and consistent and adequate employment, in order to act "in a supportive parenting role."

On cross-examination, Dr. Figurelli admitted that defendant "has a history of self-defeating and socially destructive judgment." He also agreed that he would not recommend defendant to be the primary caretaker for the child. Someone else would need to act as the primary caretaker. He agreed that it was important "for children to have consistency and stability in their lives," but he also believed it was important for the child to have a relationship with his biological father. He had never met the foster mother and knew nothing about K.K.C.'s possible bond with her. He also conceded that "[it] might be possible that someone who evaluated [K.K.C.] in his relationship to his current foster caretakers, compared to whatever relationship he might develop in the future with [Q.P.], that evaluator might conclude that it would be better for [the child] to remain with the foster caretaker."

On June 25, 2008, Judge Hayden issued a thirty-page written opinion, which she also briefly summarized on the record on June 26, 2008. In her written opinion, Judge Hayden reviewed the trial evidence in detail and concluded that the State had presented clear and convincing proof that termination of defendant's parental rights was in the child's best interests pursuant to N.J.S.A. 30:4C-15.1a. As she acknowledged in her opinion, the statute requires the agency to satisfy a four-pronged test:

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

[Ibid.]

Addressing the first prong, Judge Hayden concluded:

[Defendant] has been incarcerated since June 2004 and will be for at least two more years. "Incarceration is a material factor that bears on whether parental rights should be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 138-144 (1993). In L.A.S., the Court explained that courts must decide whether maintaining the parent-child relationship will be harmful to the child. Id. at 139. If there was no existing relationship before the parent's incarceration, it is unlikely that the parent will form a meaningful bond with the child during the period of imprisonment. Id. Presently it is undisputed that no bond exists between [defendant] and [K.K.C.]. Because of the intentional criminal act of robbery which resulted in his seven year incarceration, [defendant] has been unavailable to provide a safe and stable home to his son. This absence when his son needed him is harm within the meaning of the first prong.

. . . [Defendant's] absence and inability to be there to fulfill [his son's] physical and emotional needs on a day-to-day basis endangers [the child's] health and development. [Defendant] had never been able to physically be with his child due to his incarceration. "A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. Plainly, the Division has proven by clear and convincing evidence the first prong that [defendant's] absence from the [child's life] has endangered [him].

Addressing the second prong, the judge considered whether defendant was "able or willing to eliminate the harm and provide a safe and stable home for the child," i.e., whether the parent could "become fit in the foreseeable future." She concluded that defendant

is unable to end the harm his absence is causing his child because he is incarcerated. Moreover, both psychologists opined that upon his release he will need counseling to get at the roots of his anti-social behaviors. Thus, even when he is released in 2010, given his past criminal activities and untreated psychological issues, a strong likelihood exists that he will revert to criminal activity or be unable to provide a safe and stable home for [K.K.C.] for some time.

The judge also found that K.K.C. had bonded with his foster mother and was "especially attached to her." She credited Dr. Brown's testimony that the foster mother was the child's psychological parent, that the child was "in a nurturing, stable environment" and that separating him from his foster mother "would cause significant long-term harm." Therefore, she found that the State had satisfied the second prong.

On the third-prong issue of whether DYFS had reasonably provided services and whether there were alternatives to termination of parental rights, the court also found the State had proven its case. The court found that, due to his incarceration, DYFS "was very limited in offering any services" to Q.P. She did find that the agency searched for and located him, arranged a DNA test, had him psychologically evaluated, arranged for his sister to visit with the child, and investigated her as a possible placement.

She concluded the agency acted reasonably in ruling out the sister as a placement, that the foster mother was willing to adopt K.K.C. and give him permanency, and that defendant had not suggested any other viable family placement. The judge also reviewed at length the services DYFS had attempted to offer to the child's mother. "Under these circumstances" the judge concluded that DYFS had "provided reasonable services." She also concluded that due to the child's need for permanency and the availability of a nurturing adoptive home, there were "no suitable alternatives to the termination of [defendant's parental] rights."

Finally, addressing the fourth prong, Judge Hayden found that there was no bond between defendant and his son. She credited Dr. Brown's opinion that the child would suffer no psychological harm if defendant's parental rights were terminated. She also accepted Dr. Brown's opinion that the child needed "a predictable and sustainable" home environment and could not simply wait in foster care for his father to be released from prison. She found that because defendant was not currently able to act as a parent and was incarcerated until 2010, the child was "flourishing" in his foster home, and the foster mother was willing to adopt him, the termination of defendant's parental rights would not do more harm than good. On the contrary, termination would free K.K.C. to have a permanent home "filled with consistency and sustainability that will nurture [his] emotional and physical development."

II

Our review of the trial judge's decision is limited. "The [trial court's] factual findings . . . should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). And we owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We have reviewed the record, and judged against the applicable legal standard, we find no basis to disturb Judge Hayden's thoughtful and thorough decision in this case.

Guardianship actions implicate a constitutional right to parental autonomy, recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae [("father of the people")], to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102. In striking a balance between these competing considerations, courts are required to act in the "best interests of the child," as codified in N.J.S.A. 30:4C-15.1a. See Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986); N.J.S.A. 30:4C-15(c).

In this appeal, defendant raises the following contentions:

POINT I: Q.P.'S PARENTAL RIGHTS TO HIS SON SHOULD NOT BE TERMINATED BECAUSE THE EVIDENCE SUBMITTED AT TRIAL DID NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE STATUTORY TEST FOR TERMINATION OF PARENTAL RIGHTS WERE MET.

A. Each Prong of the N.J.S.A. 30:4C-15.1a Test Must Be Met Before A Father's Rights To His Son May Be Terminated By the State.

B. The Trial Record Shows That The Division Did Not Provide Reasonable Efforts Toward Unifying Q.P. With His Son.

C. The Trial Record Shows That the Division Did Not Clearly and Convincingly Prove Prong Two of N.J.S.A. 30:4C:15.1a.

We conclude that these arguments are without merit and, except as discussed below, do not warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

Defendant primarily focuses his brief on his claim that DYFS failed to provide him with services, and therefore failed to satisfy the third prong of N.J.S.A. 30:4C-15.1a. We find no merit in this contention. In L.A.S., supra, the Supreme Court held that a parent's incarceration, while it is "unquestionably relevant" to the termination decision, does not automatically justify termination of parental rights. 134 N.J. at 136-37. Rather, the court must consider a host of relevant factors:

[A] parent's lengthy incarceration is a material factor that bears on whether parental rights should be terminated. Incarceration may be such a factor based on either abandonment or parental unfitness. Further, we conclude that the nature of the underlying crime giving rise to incarceration is relevant in determining whether parental rights should be terminated, because it may bear on parental unfitness. We also determine that the hearing to decide whether parental rights should be terminated must be based on a broad inquiry into all the circumstances bearing on incarceration and criminality, and must include an assessment of their significance in relation to abandonment or parental unfitness.

[Id. at 143.]

Following L.A.S., we have recognized that

"[i]mprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions.'" It also may serve to frustrate nurturing and the development of emotional bonds and as a "substantial obstacle to achieving permanency, security, and stability in the child's life." Additionally, the nature of the crime causing the incarceration bears upon the issue of parental fitness and the potential for rehabilitation. The length of the custodial term is likewise an important consideration.

[Div. Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006)(citations omitted).]

"[A]n evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis." In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). "[W]here one parent has been the custodial parent and takes the primary or dominant role in caring for the children, it is reasonable for DYFS to continue to focus its efforts of family reunification on that custodial parent, so long as DYFS does not ignore or exclude the non-custodial parent." Id. at 393. Significantly to the third prong analysis here, however, we have acknowledged "the difficulty and likely futility of [DYFS] providing services to a person in custody." S.A., supra, 382 N.J. Super. at 535-36.

Given that C.C. was the only known parent for most of K.K.C.'s life, and the only parent possibly available to serve as custodial parent due to defendant's incarceration, DYFS reasonably focused its attention on providing services to C.C. Moreover, defendant has not suggested what additional services DYFS could reasonably have provided him to avoid termination of his parental rights.

Unlike the incarcerated parent in L.A.S,, supra, defendant has been in prison since before his child was born and therefore had no relationship with the child before he was incarcerated. Defendant had no ongoing relationship with the child's mother, C.C., either. While defendant inferentially suggests that "visitation" should have been offered, we do not agree that DYFS should have brought this three-year-child to a State prison to visit with a father he had never met before. See L.A.S., supra, 134 N.J. at 139 ("[O]nce a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered."). This is particularly the case where defendant would not be eligible for release until 2010, and therefore would be commencing a relationship with a child he could not even hope to parent until years in the future. Cf., S.A., supra, 382 N.J. Super. at 535. Further, his own expert conceded that even after release, defendant would not be in a position to take on the responsibility of a custodial parent. We conclude that Judge Hayden's detailed legal and factual analysis was entirely consistent with N.J.S.A. 30:4C-15.1a and with L.A.S., supra.

Finally, while we understand defendant's sincere desire to play some part in his son's life, even he acknowledged his son's bond with the foster mother and his need to remain in her care. Separating K.K.C. from his foster parent would cause the child lasting and serious harm. Defendant is not able to act as K.K.C.'s parent. The child needs a permanent and stable home now, and that can only be ensured by terminating defendant's parental rights.

Affirmed.

 

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A-0064-08T4

RECORD IMPOUNDED

 

April 16, 2009