NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1409-08T41409-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.C.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF E.Z.C, a minor.

_________________________________

 

Submitted August 25, 2009 - Decided

Before Judges Sabatino and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-121-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anamaria Bretao Bercik, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mara Spiegeland, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minor (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, K.C., the biological father of E.Z.C., appeals the final judgment of guardianship entered by the Family Part terminating his parental rights. Defendant argues that the Division of Youth and Family Services ("the Division") failed to prove at trial the four statutory criteria to justify termination under N.J.S.A. 30:4C-15.1(a). Defendant further argues that he was unduly prejudiced in the guardianship matter because of a delay in the appointment of counsel for him in the Division's related action for care and custody of E.Z.C. We affirm.

I.

The following relevant chronology emerges from the record. The child who is the subject of this appeal, E.Z.C., was born on January 28, 2007. Her biological parents are defendant, who was age seventeen at the time of her birth, and her mother, V.Q.R., who was then age fourteen. Prior to giving birth to E.Z.C., V.Q.R. herself was under the guardianship of the Division, which had been involved with her care for over five years. V.Q.R. had a history of running away from her foster parents, G.H. and C.H., with whom she lived intermittently since she was eight years old.

At the time of E.Z.C.'s birth, defendant had been recently released from a juvenile detention center and was living with his mother in Camden. He lacked employment and appropriate housing for the child. Although the precise details of defendant's juvenile and criminal history and his periods of confinement are not entirely clear from the record, it appears that he was indicted for a drug offense at some point in 2007 after he reached the age of majority. Defendant was then convicted in April 2008 in connection with a June 2007 aggravated assault and was sentenced to 364 days in the county jail. The trial judge found it noteworthy that defendant had incurred two adult offenses within seven months after turning eighteen. Defendant was incarcerated in the latter part of 2007 through several months in 2008.

Subsequent to the birth of E.Z.C., defendant fathered two other children with two mothers other than V.Q.R. One child was born in December 2007, and the other was born in May 2008. The trial judge found that defendant does not reside with or provide support to either of those children. Those additional children are not the subject of the present appeal. The record does not reflect V.Q.R. giving birth to any other children.

When E.Z.C. was born, the Division placed her in the household of G.H. and C.H., the foster residence of V.Q.R. Initially, G.H. and C.H. allowed defendant to have daily supervised visits with his daughter in their home from 3:00 p.m. to 7:00 p.m. Those arrangements were not honored by defendant, who began staying in the foster house until "all hours of the night," as late as 4:30 a.m.

The tensions created by defendant's refusal to abide by the visitation schedule escalated to a physical altercation between V.Q.R. and C.H. on February 22, 2007. V.Q.R. also unsuccessfully attempted, with the assistance of defendant, to remove the child from the home. Both V.Q.R. and C.H. reported the situation to the Division. The following day, V.Q.R. ran away without the child.

V.Q.R.'s whereabouts have been frequently unknown since that time, with the exception of a few pre-trial court appearances and some sporadic contacts with Division case workers. V.Q.R. defaulted at the time of trial in July 2008. The parties' briefs represent that she has not yet been located. V.Q.R. has not appealed the termination of her own parental rights.

Shortly after V.Q.R.'s departure, the Division removed E.Z.C. from the home of G.H. and C.H., upon receiving information that their nineteen-year-old son, who was then residing with them, had pending sexual assault charges. On February 28, 2007, the Division placed E.Z.C. in a new foster home with V.M. and J.M. E.Z.C. has resided continuously with V.M. and J.M. since that time. V.M. and J.M. wish to adopt her, as confirmed by correspondence from them in the record.

Meanwhile, the Division pursued litigation in the Family Part to protect E.Z.C.'s welfare. Three days after she was born, the Division filed a complaint under the "FN" docket in the Family Part, pursuant to N.J.S.A. 30:4C-12, on January 31, 2007, alleging that E.Z.C. was in need of protection. That same day, the court awarded the Division care, custody and supervision of E.Z.C.

On March 1, 2007, the court reconvened on the return date of the initial order to show cause in the FN matter. Both defendant and V.Q.R. appeared in court that day, each without counsel. They were granted visitation with the child, supervised by the Division. The court set down a new hearing date of April 13, 2007, and informed both parents of that date. Having been advised of the recent altercation between V.Q.R. and C.H., the court authorized the Division to file an amended complaint prior to the April 13 return date.

Accordingly, on April 10, 2007, the Division amended its complaint in the FN matter to add allegations of abuse and neglect under N.J.S.A. 9:6-8.21. The court considered that new filing on April 13, 2007, and continued E.Z.C.'s placement with her new foster caregivers. Neither V.Q.R. nor defendant appeared at that hearing, despite having advance notice of the court date from the preceding court session.

The court conducted another hearing in the FN matter on May 22, 2007. Again, neither V.Q.R. or K.C. appeared. The court continued the terms of its prior orders and also specifically ordered defendant to submit to a paternity test. As part of its fact-finding that day, the court found, among other things, that defendant had "failed to cooperate with the Division and put the child at risk when try[ing] to remove the child from the [foster] home." The court also noted that neither parent had since attempted to see E.Z.C.

Paternity tests for defendant were scheduled for May 30, 2007, and again on June 28, 2007. He did not take these tests, apparently because he had failed to submit proper paperwork as proof of his identity. According to the Division's records, its case manager contacted defendant's mother several times in July and August 2007 to prompt defendant, or his mother, to supply the requested documents.

On September 11, 2007, the Family Part held a compliance review hearing in the FN matter. The Division was awarded continued custody, and defendant was ordered a third time to take a paternity test. Defendant was absent from the hearing. However, he complied with the order and finally took the paternity test on September 26, 2007. The paternity test confirmed defendant as E.Z.C.'s biological father.

On December 17, 2007, the court conducted a further compliance review hearing in the FN matter. Defendant, who apparently was transported from jail pursuant to a writ, appeared at the hearing, along with court-appointed attorney on his behalf. V.Q.R. did not appear. The court again extended the Division's care and custody of E.Z.C., who remained with her foster caregivers.

Another compliance review hearing took place on January 16, 2008. At that hearing, the court authorized the Division to file a guardianship complaint against both parents. The court also issued a permanency order reflecting that the Division's plan for the child would be to terminate her biological parents' rights, followed by an adoption. The court noted that defendant, who again appeared in court with his counsel, was still incarcerated, and the child's mother, V.Q.R., was still missing. Care and custody of E.Z.C. remained with the Division, and she continued to reside with her foster caregivers.

On February 29, 2008, the Division filed the present guardianship ("FG") action, seeking to terminate the parental rights of defendant and V.Q.R. On that same date, the FN litigation was dismissed.

The court subsequently ordered defendant to submit to a psychological evaluation with the Division's expert, Chester Sigafoos, Ph.D., a clinical psychologist. Dr. Sigafoos was also ordered to perform bonding evaluations for E.Z.C. with, respectively, defendant and her foster caregivers.

During his psychological evaluation of defendant, Dr. Sigafoos administered the Bender Gestalt Visual Perceptual Scale, the Rorschach Inkblot Test, and the Milan Clinical Multiaxial Inventory. The results of these clinical tests indicated to Dr. Sigafoos that defendant has cognitive problems, anti-social personality disorders, and narcissism, all of which relatively affected his parenting ability.

Dr. Sigafoos explored with defendant his personal history, including his schooling, his other children, and his employment history. As part of the psychological evaluation, defendant also discussed his criminal history with Dr. Sigafoos, which apparently began when defendant was fifteen years old.

In his bonding evaluation between defendant and E.Z.C., Dr. Sigafoos observed that despite efforts to help defendant interact with the child, E.Z.C. was hesitant to embrace him. During the bonding evaluation, defendant asked Dr. Sigafoos for advice on how to properly hold E.Z.C. Dr. Sigafoos noted that when the session ended, defendant showed no emotional response to being separated from E.Z.C.:

I went back in to see [defendant] to see how he was doing. A lot of times when I see parents that really miss their children, they'll have an emotional response after the child was removed. None at all [here]. And I asked him, how do you feel? Okay. And that was about the end of it.

Dr. Sigafoos contrasted this response to E.Z.C.'s response to seeing her foster mother, where "as soon as the child sees the foster mother, they link up immediately."

In his separate bonding evaluation of E.Z.C. with V.M. and J.M., Dr. Sigafoos opined that "not only did I see the good bonding and a secure bond between the foster parents and the child, but also a developing and I feel a strong sibling bond between [E.Z.C.] and [her foster brother.]" According to Dr. Sigafoos, in order for defendant to establish a bond with E.Z.C., the child would first have to break the bond with her foster family. Dr. Sigafoos ultimately opined that removing E.Z.C. from her current foster parents would cause the child "significant serious and enduring harm."

The Division investigated at least three other alternative caregivers. Defendant's own mother, C.P., was ruled out as unsuitable because she had a prior negative history with the Division. A maternal aunt of defendant was also eliminated from consideration because she never returned telephone calls from the Division's case worker. In addition, R.H., a family friend suggested to the Division, declined any interest.

The guardianship trial took place over two days in July 2009. The Division presented testimony from Dr. Sigafoos and from E.Z.C.'s caseworker. Defendant and his mother also testified. Defendant presented no expert witnesses. V.Q.R., who was still missing, did not attend the trial.

In his trial testimony, Dr. Sigafoos amplified the professional findings embodied in his expert report. He reiterated that his clinical assessment of defendant reflected narcissism and anti-social personality disorder that would "greatly" affect his ability to parent. Dr. Sigafoos found significant defendant's offense history and other patterns in his behavior that "showed a lack of responsibility." In Dr. Sigafoos's opinion, such traits commonly result in "parent management problems" and a failure to be "responsible for the child."

By contrast, Dr. Sigafoos opined that E.Z.C. exhibited a "secured bond" with her foster parents and a "strong sibling bond" with their six-year-old child. Dr. Sigafoos observed spontaneous affection exchanged between E.Z.C. and the foster family. He also described how the foster mother effectively imposed correct limits on the child's behavior, exemplifying "authoritative parental management."

In conclusion, Dr. Sigafoos stated that E.Z.C. would suffer "significant serious and enduring harm" if removed from her foster parents. By comparison, Dr. Sigafoos concluded that such harm to E.Z.C. would not occur if defendant's parental rights were terminated. On cross-examination, Dr. Sigafoos maintained these conclusions, stressing the traumatic and likely permanent impact upon E.Z.C. that would be caused if she were separated from the family that has raised her for all but a few months of her life. Dr. Sigafoos rejected the notion that the child was too young to have significant residual effects from such a change in custody.

The Division's caseworker traced the history of its involvement with E.Z.C., and recounted the circumstances that led to her removal from the home of G.H. and C.H. and her placement with V.M. and J.M. a month after her birth. The caseworker noted that when the child was removed, defendant did not request any services prior to his incarceration. She also noted his failure to appear for paternity tests. The caseworker confirmed that the child's mother had shown no interest in the child, and detailed the efforts of the Division to locate her.

Defendant's mother C.P., who is unemployed and lives with her daughter, indicated her desire to raise the child. She acknowledged in her testimony, however, that she has a history of drug use. She also conceded that she has been previously found by the Division to have committed child abuse and neglect without appealing that adverse finding, and that the Division's involvement led to the removal of her own children. Although C.P. maintained a desire to see E.Z.C. before trial, she did not have any visits with her and did not attempt to seek relief from the court.

In his own testimony, defendant acknowledged his prior offense history as a juvenile and an adult, including possession of an unlawful weapon, possession of a controlled dangerous substance, and eluding. He admitted that he was unemployed at the time of E.Z.C.'s birth, and that he had not seen her since the time of his incarceration in 2007, other than the bonding evaluation with Dr. Sigafoos in July 2008. Defendant conceded that he had not pursued visitation with anyone at the Division and that he had not requested the Division to place E.Z.C. with his mother. He also acknowledged that he had not requested any services from the Division after his release from jail.

Defendant stated that he has regular contact with his two other children, but that they do not live with him and that he does not provide them with child support. As of the time of trial, defendant was living with his mother.

Upon considering the proofs, the trial judge entered a final judgment terminating the parental rights of both defendant and V.Q.R. The judge was satisfied by clear and convincing evidence that the Division had established all four prongs of the statutory criteria for termination. Among other things, the trial judge found that "defendants are not capable of effectively parenting this child and returning the child to either or both of them places her at risk for future harm." The judge further stated that "[t]he foster parents have expressed a desire to adopt this child and the court finds no reason to keep this child in legal limbo in the unrealistic hope that her biological parents will demonstrate the responsibility required to care for her now or in the future."

Defendant now appeals. He contends that the trial proofs were insufficient to satisfy the criteria for termination of his parental rights. He also claims that he was unfairly disadvantaged by the fact that he did not have an attorney appointed for him in the related FN case until December 2007.

II.

We are mindful that a court's permanent termination of a parent's relationship with his or her child raises fundamental constitutional interests. See, e.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (noting the constitutional protection afforded to "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the State"); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (same); In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (same). In New Jersey, those important parental interests are recognized in the well-established criteria for the termination of parental rights in guardianship actions brought by the Division. The Division must establish, by clear and convincing proof, that:

(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) [DYFS] 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). See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

Our standard of review in cases of this nature is circumscribed. As the Supreme Court has reaffirmed, the "[r]eview of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). See also E.P., supra, 196 N.J. at 104 (noting that this court shall give deference to the factual findings of the trial court because it had the opportunity to "make first-hand credibility judgments" and it also had a "'feel of the case' that can never be realized by a review of the cold record.") (quoting M.M., supra, 189 N.J. at 293). We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings. Ibid. (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Additionally, we customarily do not second-guess the factual findings of judges, particularly judges in the Family Part, given the Family Part's expertise in matters that involve domestic relations and the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

Having carefully reviewed the record, we are satisfied that the Division fully met its burden in this case, substantially for the cogent reasons set forth in Judge Donaldson's detailed written opinion of September 25, 2008. We highlight only a few aspects of the analysis germane to each of the four statutory factors.

First, as to E.Z.C.'s safety, health or development, we agree with the trial judge that she has been endangered by her parents and is likely to continue to be endangered. N.J.S.A. 30:4C-15.1(a)(1). When E.Z.C. was born, defendant had only recently been released from a juvenile facility. He lacked appropriate housing for the child or employment. As reflected by Dr. Sigafoos's unrebutted psychological assessment, defendant has behavioral problems and has exhibited a history of aberrational conduct. He repeatedly violated the established rules by remaining in the house of G.H. and C.H. after hours. He committed two adult crimes within the first year of the child's life resulting in his incarceration. Although defendant's incarceration cannot be the sole factor to justify a finding of endangerment, see N.J. Div. of Youth & Family Servs. v. L.A.S., 134 N.J. 127, 143 (1993), it is nonetheless a relevant factor.

Second, we agree with the trial judge that defendant has been unable to eliminate the harm facing E.Z.C. and that a delay in her permanent placement will only add to that harm. N.J.S.A. 30:4C-15.1(a)(2). Again, the personality disorders identified by Dr. Sigafoos pose, in his expert opinion, "a significant obstacle to [defendant] being able to function in society." The record further supports the judge's finding that defendant "has made no effort to support his child or to provide for her physically, financially, or emotionally." We also note defendant's failure to support his two other children. Meanwhile, E.Z.C. has become strongly attached to her foster caregivers, and delay in her permanent placement is likely to be traumatic and harmful.

Third, we see no reason to disturb the trial judge's finding that the Division has made reasonable efforts to provide services to defendant. N.J.S.A. 30.4C-15.1(a)(3). The Division repeatedly attempted to arrange a paternity test for defendant, which he finally submitted to after several reschedulings. Defendant was entitled to visitation with E.Z.C. by court orders, but made no real effort to pursue such rights, either during his period of incarceration or after his release. Although he is now an adult, he appears to still rely on his mother to take responsibility for him. The Division appropriately ruled out defendant's mother as a suitable caregiver, given her prior negative history, and also investigated the other two potential caregivers who likewise turned out to be non-viable.

Fourth and finally, there is a sound basis in the record for the trial judge's ultimate finding that termination of defendant's parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The trial judge sensibly balanced E.Z.C.'s best interests, noting both that she has bonded closely with her adoptive foster parents and their son, as well as her need for continued stability. The trial judge appropriately relied on the expert assessment of Dr. Sigafoos, whose professional opinions were not rebutted by any other expert.

Apart from these statutory factors, defendant raises an argument that he did not raise below: that he was unfairly disadvantaged in the guardianship (FG) litigation because he did not have an attorney appointed for him in the FN matter until December 2007. We find that delay inconsequential to the present appeal for several reasons. First, defendant was represented by counsel in this guardianship matter from its inception in February 2008, in full compliance with N.J.S.A. 30:4C-15.4. Second, defendant did not have a statutory right to counsel in the earlier FN matter until the Division amended its complaint on that case on April 10, 2007 to insert allegations of abuse and neglect under N.J.S.A. 9:6-8.21. See N.J.S.A. 9:6-8.43 (noting the defendant's right in such a case to be advised of his right to an attorney). However, when the Family Part first considered the amended FN complaint at the previously-scheduled court hearing on April 13, 2007, defendant did not appear, despite having been notified of that court date in writing when he last appeared on the return of the order to show cause on March 1, 2007.

Because defendant failed to come to court on April 13, he was not present to fill out an indigency form and thereby request court-appointed counsel. Defendant missed the next two compliance review hearings on May 22 and September 11, 2007. However, when he appeared for the next proceeding on December 17, 2007, he was with an assigned attorney, who advocated his interests to the court. Viewing the circumstances as a whole, it was defendant himself who contributed to the delay in procuring counsel.

Moreover, defendant has not demonstrated that a delay in securing counsel in the FN matter caused him cognizable prejudice in the FG case the following year. A parent contending that he has been deprived of the effective assistance of counsel in a guardianship case must do more than make conclusory allegations of prejudice. Instead, he must present a "detailed exposition" of how the lack of effective representation harmed him and show "why the result would have been different" with such representation. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007). Defendant has failed to make such a detailed showing. In addition, the strong evidence favoring termination renders defendant's claim of prejudice highly speculative at best.

 
Affirmed.

Defendant contends that he was released from jail in April 2008, while the Division asserts that he was not released until July 2008. The two-month chronological difference is inconsequential to our analysis.

Defendant was consistently represented by counsel at all ensuing proceedings in the FN matter. He was also represented by the same counsel throughout the guardianship case.

(continued)

(continued)

20

A-1409-08T4

RECORD IMPOUNDED

 

September 1, 2009