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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3259-07T43259-07T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.K.,

Defendant-Appellant,

______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.S.K., a Minor.

________________________________________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Lisa, Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-92-06.

Jeffrey L. Weinstein, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jim Harris, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor A.S.K. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, J.K., appeals from a judgment of guardianship terminating his parental rights to his daughter, A.S.K., who was born on June 16, 1998. Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of proving all four prongs of the best interest test. Defendant also argues that he was denied the effective assistance of counsel and that the trial judge should have recused herself from this case. We reject these arguments and affirm.

I

Defendant is sixty-seven years old. He is a retired special education teacher. He was previously married in 1967. He and his wife separated in 1977 and were divorced in 1997. He has two grown children from that marriage.

Defendant began a relationship with G.H. in 1993. A.S.K. was born of that relationship. A.S.K. was born prematurely and spent the first six or seven months of her life in the hospital. Over the next several years, G.H. spent some time living with defendant in his Somerdale home and some time living in Philadelphia. When she went to Philadelphia, she took A.S.K. with her. According to defendant, G.H. suffers from bipolar disorder and has had a history of hospitalizations in mental health facilities. G.H. was not providing proper care for A.S.K. when A.S.K. was in her custody. In October 2003, the Pennsylvania Division of Human Services placed A.S.K. in defendant's care.

After moving in with her father, A.S.K. attended kindergarten at a local public school. Child study team evaluations revealed that A.S.K. suffered from various developmental disabilities. She was ultimately diagnosed with various conditions, including attention deficit hyperactivity disorder (ADHD) and petit mal absence seizure disorder. She was prescribed medications for these conditions. A.S.K. also exhibited symptoms of post-traumatic stress and "generalized and sexualized behavior difficulties." A.S.K. was provided counseling to address these issues. A.S.K. is a special needs child and a classified student placed in a special education program.

From the time of her placement with defendant, A.S.K. and defendant lived alone in defendant's Somerdale home. On June 29, 2004, defendant and A.S.K. went to Philadelphia. They visited G.H., who was confined in a mental health facility. Defendant dropped off A.S.K. at a relative's home. Defendant then picked up A.S., a fourteen-year-old girl. According to defendant, he asked her how old she was, to which she responded she was eighteen, and said she was living with her grandmother but did not like living there and wanted to leave. Defendant contended he asked her whether she was good with children and suggested she come with him to become A.S.K.'s nanny, to which A.S. agreed.

According to A.S., she was walking across a street when defendant pulled up in his car and asked her to get in, which she did. He told her things that "women would like to hear." When he asked her age, she said, "How old do I look?" When defendant said, "eighteen," A.S. responded, "[i]t is what it is."

Under either version of these events, defendant did not make any further inquiries of A.S. regarding her age, qualifications to be a nanny, background, or the like. And, defendant did not inform A.S.'s grandmother that A.S. would be coming to live with him in New Jersey. It is apparent that A.S. was a runaway, and possibly a prostitute.

With A.S. in his car, defendant drove to the place where he had left A.S.K. While A.S. waited in the car, defendant went in and got A.S.K. The three then proceeded to defendant's Somerdale home.

A.S. admitted that for the next month she regularly engaged in all forms of sexual relations with defendant in the home. She denied that A.S.K. was present during these activities. Defendant denied having sexual relations with A.S., although he acknowledged observing her using sex toys he maintained in his home to pleasure herself. Defendant also denied ever leaving A.S. alone with A.S.K. However, A.S. stated that she often went alone with A.S.K. to various places, including the mall, the park, and the library.

Defendant maintained in his home a large quantity of pornographic materials. He kept a video camera mounted in his bedroom and often videotaped his sexual activities. A.S. acknowledged that defendant videotaped some of their sexual relations. A.S.K. stated that she sometimes watched pornographic videos with her father.

A.S. described an incident in which defendant physically abused A.S.K. From outside the house, she heard A.S.K. screaming. She ran in to see what was wrong and saw defendant holding a "broken tree stick" in his hand. She saw splinters in A.S.K.'s skin "around her buttocks area." A.S. surmised that defendant had just beaten A.S.K.

A.S. testified that she slept in various places in the house, sometimes in the guest bedroom, sometimes in the den, and sometimes in defendant's bed with defendant and A.S.K. (although A.S.K. had her own bedroom in the house).

The Division's involvement in this case stems from an incident which occurred on June 29, 2004, when defendant, accompanied by A.S.K. and A.S., went to the Division of Pensions and Benefits in Trenton. While defendant was in a portion of the building discussing his pension issues, he left A.S. and A.S.K. in the lobby. A.S. absconded with A.S.K. When defendant returned to the lobby and realized the girls were missing, he waited there for a while, then drove around the streets of Trenton looking from them, and finally, after about four-and-one-half hours, called the police and reported them missing.

Detective Robin Gittens of the Trenton Police Department accompanied defendant to his home to obtain photographs of A.S.K. and A.S. When Gittens asked defendant if she could conduct a visual inspection of his home for anything that might help in the search, defendant refused to consent until he could obtain the advice of his attorney. Gittens then obtained a search warrant, which she executed on July 1, 2004.

Gittens described defendant's home as "cluttered with excessive pornographic material throughout the home in plain view" and "unfit for the rearing of a child." She observed large quantities of films, videotapes, a video camera in defendant's bedroom, magazines, and photographs in boxes. Defendant later alleged that the police fabricated the scene in order to bring charges against him. He contended he kept these materials in sealed boxes and planned to sell them since A.S.K. moved in with him about eight months earlier.

Describing the video camera in defendant's bedroom, which was aimed at his bed, Gittens said it contained a videotape depicting defendant engaging in sex with a young girl. Gittens "could not see the girl's face but her general appearance was similar to the photograph she had of [A.S.]," and, the girl "appeared to be younger than what [defendant] had told them and . . . did not appear to be eighteen years old." Another video later obtained by the police depicted defendant engaging in sex with three prostitutes between August 4, 2004 and August 20, 2004. One of the prostitutes could be seen smoking crack cocaine from a glass pipe and bargaining with defendant for more drugs in exchange for performing specific sexual acts.

Based on her observations, Gittens referred the matter to the Division. On July 2, 2004, a DYFS worker investigated defendant's home and interviewed defendant about the events of his daughter's disappearance. At that time, defendant's bedroom no longer contained the video camera pointed at his bed.

On July 8, 2004, after nine days of searching, the police received a tip from a Philadelphia woman who saw a picture of A.S.K. in the Philadelphia Inquirer and recalled seeing the girl in the presence of her neighbor. Apparently, when A.S. got to her North Philadelphia neighborhood with A.S.K., she left A.S.K. in the custody of others and A.S.K. was shifted around from time to time to various unrelated and unknown individuals. It is also apparent that during this time, A.S.K. spent some of her time in or was exposed to a brothel.

Dr. Marita Lind, a pediatrician with special expertise in child abuse matters, examined and interviewed A.S.K. the day after A.S.K. was found in Philadelphia. Lind explained that A.S.K. had been "found in the company of people who were believed to be prostitutes in Philadelphia." In her trial testimony, Lind described her interview with A.S.K. A.S.K. described her experiences in Philadelphia as follows:

I asked [A.S.K.] who she was with when she was away from her dad, she said Shenayah (phonetic) and Kate, but I wasn't really sure that she had said Kate so I asked her to repeat that second name and she said [A.S.].

I asked her who those girls were, she said big girls, a lady Lori lives with them -- lived with them. She -- she played with me yesterday, I slept over her house. I asked [A.S.K.] what else happened while she was away, she said men came to the house. I said what happened then. She said they kept -- keep their legs open. I said who keeps their legs open, she said the girls did. I asked who else, she said the lady do. I said what happens then, she said the men open their eyes. I said what else happens, they were slipping on the ground, a lady's foot got broken.

I asked [A.S.K.] when the legs were open what happened, she said men do stuff with their bodies, men touch girls' bodies.

A.S.K. went on to describe events that occurred with defendant, as well as further events in Philadelphia:

At that point, I asked her if anyone had taken any pictures of her with her clothes -- without her clothes on and she said yes. I said how do you feel about that, she said sad and she again was crying. I asked her where did this happen and she said my daddy did it. I said where were you going -- what were you doing and she said getting into the tub. I was -- it was too hot. I asked where else, she said eating bubble gum and in my bed. I help my daddy with my hand, he don't feel good, he don't hurt no more, I was being the doctor. I said how did you help and she said his private part.

I said what do you call that and she said his penis. Daddy took pictures with the camera at the house, I watched a movie. I said did you ever see any of these pictures, she said I watched a movie. I said what was in the movie, she said people were hitting people, people were touching bodies. Daddy was touching a boy, daddy put it in the boy's mouth, the boy was bigger than me. And I said did you see anymore movies. She said the movie of daddy touching me.

I asked [A.S.K.] if she could tell me anything else about going to Philadelphia. She said the girl who took me to Philadelphia was [A.S.]. I said why did she take you there, she took me to keep me safe. I said did that work. She said I felt safe with her but when I was with [A.S.] the grownups hit me. I asked [A.S.K.] if anything else happened, she said daddy was touching [A.S.], he made pictures with her, he don't touch no more. Then she began to cry again for a while.

I asked [A.S.K.] if she had any questions -- any worries about her body and she said in Philadelphia girls got swatted by the boys, girls spread their legs and people come -- came and touched them Courtney Jar (sic). I said did anything happen to you, she said they touched me in the privates and gave me two monies. . . .

As a result of the abduction of A.S.K., A.S. was charged with and adjudicated delinquent for kidnapping and endangering the welfare of a child. She was sentenced to a term of confinement in a juvenile facility.

On July 8, 2004, defendant signed a fifteen-day consent allowing the Division to place A.S.K. in foster care or with a relative or family friend. A.S.K. has remained under the Division's care since that date. The Division filed a complaint for emergency removal of A.S.K. from her father's custody. After a hearing on August 25, 2004, Judge Page ordered continued custody with the Division and authorized supervised visitation with defendant. The court ordered DYFS to investigate A.S.K.'s adult half-brother, S.K., for possible placement. On April 7, 2005, Judge Page found that defendant had abused or neglected A.S.K. The judge also ordered two unsupervised weekend visits, after which A.S.K. would be returned to defendant's custody on or before April 29, 2005.

However, on April 29, 2005, a nineteen-count indictment was returned against defendant, alleging multiple offenses, including sexual assault, against A.S.K. and A.S. That same day, a criminal part judge entered a bail order, containing a condition that defendant have no contact with A.S.K. An order was issued in the family court staying Judge Page's return order, which was essentially overridden by the criminal bail order. The no-contact order remained in effect until defendant's criminal charges were ultimately resolved nearly two and one-half years later, on September 14, 2007.

DYFS supervised at least eleven visits between defendant and A.S.K. between August 13, 2004 and March 31, 2005. A.S.K. lived with several different foster families during this time. She also briefly lived with her adult half-brother, J.K., Jr., in Maryland, and supervised visitation was permitted. Visitation was suspended, however, with the no-contact order of April 29, 2005.

DYFS investigated a potential placement with A.S.K.'s maternal aunt, S.M. in Maryland. A home evaluation was conducted on December 6, 2004. However, after entry of the no-contact orders on April 29, 2005, DYFS became aware that S.M. violated the orders by allowing A.S.K. to have contact on a number of occasions with defendant. Due to these incidents, S.M. was ruled out as a possible placement for A.S.K.

DYFS pursued potential placement with A.S.K.'s adult half-brother, S.K., in Georgia. The investigation was satisfactory, and S.K. agreed to adopt A.S.K. However, the placement never materialized because at some point S.K. became unresponsive to the Division's communications.

A.S.K. moved around to several foster placements. She has currently been in the same foster home since August 2006. She is doing well. The environment is stable and wholesome. The foster parents wish to adopt. A.S.K. has developed a strong attachment to her foster parents.

On April 17, 2006, DYFS filed a guardianship complaint seeking termination of the parental rights of defendant and A.S.K.'s mother. The abuse and neglect proceeding was terminated at that time.

Defendant participated in the preparation of two case management plans, both of which he signed. Defendant was represented by counsel when he did so. These plans were entered into on December 8, 2004 and November 21, 2006. In each plan, under the heading "Reasonable Efforts to Achieve/Finalize Permanency Plan," it stated: "[Defendant] is facing criminal charges. Services will not be implemented until the charges are addressed."

As we previously stated, defendant's criminal charges were resolved on September 14, 2007. On that date, defendant was sentenced on two counts of second-degree endangering the welfare of a child. This was the result of a plea bargain, by which defendant pled guilty to the two counts, one pertaining to A.S. and the other to A.S.K. (both for non-sexual improprieties). All other charges were dismissed and, as recommended in the plea agreement, defendant received a non-custodial probationary sentence. Upon being sentenced, the bail order (with the no-contact provision) was discharged, and defendant sought to resume contact with A.S.K. Judge Melendez, who was handling the guardianship matter, declined to allow contact because the guardianship trial was imminent, and the judge deemed it appropriate to maintain the status quo.

The trial took place on October 22, 25 and 26, and December 17 and 18, 2007. At the trial, the Division presented as witnesses Lind, A.S., Gittens, Dr. Linda Jeffrey, a psychologist, and a case worker and investigator. Defendant testified on his own behalf, and he presented the testimony of Dr. Gerald Cooke, a psychologist who had evaluated him in connection with his criminal charges. The court also received in evidence voluminous documentary materials, including various reports of evaluations and consultations.

The evidence revealed, for example, the results of interviews of July 14 and August 18, 2004 of A.S.K. by an investigator at the Camden County Advocacy Center. During the interviews, A.S.K. was presented with anatomically correct male and female dolls. A.S.K. exhibited an inappropriate degree of sexual knowledge for a six-year-old child. She simulated the female doll performing fellatio on the male doll. She then took the penis of the male doll and placed it in her own mouth stating that it was hard. An investigator who witnessed this stated that he had conducted or witnessed nearly 500 interviews during his years in the sex abuse unit and had never before seen a child spontaneously perform oral sex on one of the anatomical dolls. When A.S.K. was asked who did that to her, she repeated several times, "I didn't do that with daddy."

Beginning in February 2005, A.S.K. received counseling from a social worker specializing in sexualized behavior. During a February 17, 2005 evaluation, while playing with a doll house and dolls (not the anatomically correct dolls used for forensic interviews), A.S.K. discovered that the dolls had undergarments and, according to the evaluator, she "kept touching the private parts of one of the adult male dolls, even when asked not to." The evaluator concluded that A.S.K. "appears to be experiencing distress secondary to sexual abuse," and "[w]hile she does not meet criteria for a specific DSM IV diagnosis, [A.S.K.] does exhibit some symptoms of post-traumatic stress, and is exhibiting both generalized and sexualized behavior difficulties."

On September 22, 2007, Dr. Jeffrey conducted a bonding evaluation with A.S.K.'s foster parents. Jeffrey found a secure attachment between A.S.K. and her foster parents and recommended she remain in their care. Jeffrey found the foster parents empathetic, nurturing, and attuned to A.S.K.'s needs. She concluded that A.S.K. has "an affectionate tie to them, responds to their authority, and bases her sense of security in her relationship with them." She added that removal from their care "is likely to place [A.S.K.] at risk for serious and enduring harm."

On December 20, 2006, Jeffrey conducted a psychological and parenting evaluation of defendant. The psychological testing included the Millon Clinical Multiaxial Inventory-III (MCMI-III), the State Trait Anger Expression Inventory 2 (STAXI-2), and the Paulhus Deception Scales (PDS). Defendant had "slightly above average" to "much above average" scores for various components of the PDS, indicating a lack of self-insight. He posed a very high social desirability score on the MCMI-III which, according to Jeffrey, means he was not candid and answered the questions so as to paint himself in the most desirable light.

Based on these tests and an interview with defendant, Jeffrey recommended against placement of A.S.K. with defendant. She concluded that defendant suffered from "significant emotional and personality problems" which "seriously decrease his parental capacity to provide a minimum level of safe parenting." She added that "[h]is daughter is highly likely to be at high risk for harm in his care." She also concluded from the tests that defendant is "a poor candidate for therapy" and "likely to project responsibility for his actions onto others." In addition to the testing, Jeffrey explained her reasoning as follows:

In the interview [defendant] reported he selected a homeless girl he met on the street in front of a restaurant as a "nanny" for his daughter. Regardless of whether he knowingly sexually abused this 14-year-old [A.S.], his lack of basic parenting judgment and failure to protect his daughter appropriately are apparent. [Defendant]'s fundamental self-absorption and emotional immaturity seriously impair his parenting capacity. His profound narcissism and lack of empathy mean he is unable to detect and be attuned to the needs of a child.

On December 27, 2006, defendant's expert, Dr. Cooke, conducted a psychological evaluation. He held a lengthy clinical interview, performed objective personality testing similar to that done by Jeffrey, and reviewed the entire DYFS file, A.S.K.'s school records, defendant's criminal file, and transcripts of interviews between A.S.K. and Lind and another evaluator. Cooke found defendant "extroverted, sociable, outgoing, and friendly" with "average self-esteem and psychological coping techniques." His testing determined that defendant had some negative psychological traits, such as defensiveness, chronic anger, and feelings of being mistreated. However, viewing the results in conjunction with defendant's interview and records, he attributed those characteristics to defendant's resentment, directed primarily at white people, due to his perception since childhood that racism made it difficult for him to succeed as a black man from the South.

Overall, Cooke concluded that the testing revealed no evidence of mental illness, personality disorder, sexual pathology, or any of "the kinds of dynamics or psychopathology that usually accompanies pedophilia." According to Cooke's report, defendant denied ever having sex with A.S. but acknowledged videotaping himself having consensual sex with adult women, including friends, prostitutes, and swingers. Cooke testified that "there has been found to be no relationship between interest in adult pornography and sexual deviancy in general or a potential for pedophilia in specific."

Cooke acknowledged on cross-examination that some of his testing lacked complete validity controls to "tell you whether somebody is faking." For example, defendant indicated that, on a scale from zero to 100, he spends zero percent of his waking hours thinking about sex. Cooke conceded on cross-examination that this was "ludicrous."

Jeffrey's diagnosis included a delusional disorder paranoid type and narcissistic personality disorder with negativistic compulsive paranoid depressive and schizoid personality features. Judge Melendez credited Jeffrey's testimony and rejected Cooke's. We note that, by his own testimony, defendant demonstrated the narcissistic and paranoid traits described by Jeffrey. For example, he continually blamed others for the predicament he was in. He accused the police of planting evidence. He accused the prosecutor of altering the transcript of his guilty plea. He placed blame on the Division and mental health evaluators. He described his aspiration for the future as hoping, within five years, to become a CEO of a Fortune 500 company.

On January 28, 2008, Judge Melendez placed upon the record her oral decision. The judge comprehensively reviewed the trial evidence and made detailed factual findings, concluding that by clear and convincing evidence the Division proved each of the four prongs of the best interest test. Accordingly, the judge entered a judgment of guardianship terminating the parental rights of defendant and A.S.K.'s mother to A.S.K., and awarding guardianship of A.S.K. to the Division. This appeal followed.

II

Defendant and the law guardian argue that the Division failed to establish by clear and convincing evidence that termination of parental rights was required to provide for the best interests of A.S.K.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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.

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

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Defendant concedes that he engaged in conduct that endangered A.S.K.'s safety and health. Beyond any dispute, he placed his daughter in the care of A.S., a fourteen-year-old child defendant picked up on the streets of Philadelphia, knowing nothing about her background or character. As a result of leaving A.S.K. alone with A.S., A.S. kidnapped A.S.K., took her to Philadelphia, and left her with unknown and apparently undesirable individuals in an unsavory milieu involving prostitutes and unsafe living arrangements. Defendant asserts that he never had any sexual contact with A.S.K., although he admits that the storage of pornography in his home "was clearly some endangerment." Indeed, by pleading guilty to second-degree endangering the welfare of a child with respect to A.S.K., defendant admitted under oath in his criminal proceeding that he "did knowingly cause harm to" A.S.K. No further discussion is required regarding the first prong.

The second prong may be established in one of two ways: first, if the parent is unwilling or unable to eliminate the harm that has endangered the child's health or development or, second, if the parent is unwilling or unable to provide a "safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2); K.H.O., supra, 161 N.J. at 352. The statute specifies that such added harm includes evidence that separating the child from his or her foster family would cause serious emotional or psychological harm. N.J.S.A. 30:4C-15.1a(2).

Although the second prong more directly focuses on conduct that equates with parental unfitness, the first two prongs interrelate to form the components of the harm requirement, and "evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 348-49). A parent's prolonged inability to take custody of, care for, and provide a safe and stable home for a child demonstrates parental unfitness constituting harm under the second prong of the statute. K.H.O., supra, 161 N.J. at 353-54. Delay caused by ongoing failure to assume a responsible parental role itself constitutes harm to the extent it weakens other bonds a child might form, such as a healthy bond with foster parents. Ibid.

In her thorough findings concerning the second prong, Judge Melendez found defendant's testimony "self-serving, evasive, contradictory, and at times unbelievable." He admitted that he and his former wife had previously been "swingers," but claimed to have left that lifestyle long ago. The evidence included homemade videos made between August 4 and August 20, 2004, less than one month after A.S.K. was removed from his custody, in which defendant recorded himself performing various sexual acts with three different prostitutes, one of whom could be seen smoking crack cocaine through a glass pipe and asking defendant if he had another bag of crack. The judge found that this "clear example of [defendant]'s lies and denials . . . . len[t] credence to [A.S.]'s version of the events leading up to [A.S.K.]'s placement in foster care." The judge illustrated defendant's lack of credibility:

[Defendant] expects this Court to believe that a man with two college degrees, one of which was in special education, mistook a 14-year-old homeless prostitute whom he met on the streets of Philadelphia for a woman qualified to serve as a nanny to a child with multiple disabilities.

At trial, defendant denied responsibility for A.S.K. being placed in DYFS custody. He refused to admit his contribution to the harm suffered by his daughter and continually shifted blame to others. The judge noted defendant's claims that police framed the scene of pornography at his home, lied, and planted evidence, that Dr. Lind made up A.S.K.'s statements, and that A.S. fabricated her stories.

Judge Melendez also focused her findings on the conflicting expert testimony about defendant's mental and emotional state. She expressly rejected Dr. Cooke's opinion that defendant's mental evaluation showed no evidence of mental illness, personality disorder, or sexual pathology. She pointed to several of defendant's answers to questions from the evaluations, which Cooke was forced to acknowledge as "ludicrous" on cross examination. These included defendant's responses that in five years he would like to be the CEO of a Fortune 500 company and that, on a scale of one to one-hundred, he spends zero percent of his day thinking about sex. The judge found that these statements undermined Cooke's opinion and supported the conclusions of Dr. Jeffrey.

The judge credited Jeffrey's findings and found that the evidence clearly and convincingly showed defendant to be unwilling or unable to eliminate the harm. The judge stated:

[Defendant]'s testimony is a tribute to Dr. Jeffrey's diagnosis of delusional disorder paranoid type and narcissistic personality disorder. Dr. Jeffrey opined that . . . "his lack of basic parenting judgment and failure to protect his daughter appropriately are apparent. [Defendant]'s fundamental self-absorption and emotional immaturity similarly impair his parental capacity," . . . .

In summation, Dr. Jeffrey wrote, . . . "[Defendant]'s significant emotional and personality problems seriously decrease his parenting capacity to provide a minimum level of safe parenting. His daughter is highly likely to be at risk for harm in his care. This evaluator does not recommend the placement of [A.S.K.] in the care of [defendant]," . . . . Dr. Jeffrey was the only expert qualified at trial to testify regarding the parenting capacity of [defendant] and consequently, our findings in this regard are uncontradicted.

Judge Melendez's findings, including her credibility determinations are supported by adequate, substantial, credible evidence in the record, and we defer to them. The adoption of Jeffrey's conclusion that defendant's negative personal qualities and lack of parenting judgment would continue to pose a threat to A.S.K. or fail to provide her with a safe and stable home, satisfied the second prong.

Judge Melendez nevertheless continued her reasoning with a thorough analysis of how the delay in permanent placement would add to the harm to A.S.K. We need not discuss this analysis at length. By way of brief summary, the judge noted the length of A.S.K.'s time in the foster care system and Dr. Jeffrey's bonding evaluation with her current foster parents, which found a secure attachment. Relying on Jeffrey's testimony, the judge found that, if A.S.K. were removed from her foster parents it "would cause [A.S.K.] serious and enduring harm." And, defendant would be ill-equipped to alleviate the harm she may suffer as a result.

Defendant takes issue with the judge's reliance on the length of separation between him and his daughter, to which he claims the court contributed. The judge, however, found that defendant, through his own actions, brought about each extension of the no-contact order. Similarly unavailing is defendant's reliance on the willingness of Judge Page to allow reunification in his April 7, 2005 order. Judge Melendez properly refused to speculate on the evidence presented to previous judges at previous hearings in the FN litigation. And, of course, some evaluations on which Judge Melendez relied in the guardianship proceeding took place after conclusion of the FN proceeding. The judge's analysis and findings on the second prong are sound and well supported by the record.

Under the third prong, DYFS must demonstrate that it made reasonable efforts to provide services to help the parent correct the circumstances that led to the child's placement outside the home and that it considered alternatives to termination of parental rights. Taking the latter requirement first, the record clearly establishes that the Division made considerable efforts in attempting to place A.S.K. with various relatives as an alternative to termination. The judge first noted that the Division made extensive efforts to explore potential placements for A.S.K. with various family members. In addition to those we have already mentioned, (both of A.S.K.'s adult half-brothers, J.K., Jr. in Maryland and S.K. in Georgia, and A.S.K.'s aunt, S.M.), the Division also made an effort for placement with A.S.K.'s maternal grandmother. Despite these considerable efforts by the Division, none of these potential placements materialized. We thus move on to a discussion of the first requirement of this prong, the "reasonable efforts" component.

The reasonable efforts component requires DYFS to encourage, foster, and maintain the bond between the parent and child as the basis for reunification of the family. DMH, supra, 161 N.J. at 390 (citing In re Guardianship of K.L.F., 129 N.J. 32, 37-46 (1992)). Which particular services are necessary must be determined according to the circumstances of each individual case, including the parent's participation in the process. Ibid. The parent must make an active effort to comply with the recommended services. Ibid.

The judge noted that, while represented by counsel, defendant joined in two case management plans on December 8, 2004 and November 21, 2006, by which he agreed that, because of the pendency of his criminal charges, no services would be implemented until the charges were addressed. Thus, by agreement, the Division's obligation to provide reasonable efforts during the pendency of the criminal charges was suspended. Further, without dispute, the no-contact bail order remained in effect and precluded any contact between defendant and A.S.K. until September 2007, one year and five months after DYFS filed the guardianship complaint and one month before commencement of the guardianship trial. We agree with Judge Melendez's analysis and conclusion that defendant temporarily waived the requirement that the Division provide services. We set forth at length a portion of the judge's incisive analysis of why, under the facts and circumstances of this case, the third prong was satisfied:

[Defendant] claims that the delays in the criminal matter are to blame for his current predicament. Th[ese] delays occurred as a direct result of [defendant]'s overt actions.

The prosecutor in [defendant]'s criminal case stated on the record during his guilty plea that the primary reason for the plea in this case was to avoid the children having to testify, P-16.

[Defendant] argues what if the charges that he pled guilty to had been the only charges pressed against him? What if no [no-contact bail] provision had been entered? What if the criminal matter had not taken two years? What if? An exercise in such . . . supposition is useless.

One could just as reasonably ask what if [defendant] had not picked up [A.S.]? What if [A.S.] had not taken [A.S.K.] to Philadelphia? What if the police had not found all the pornography in open view for [A.S.K.]'s perusal? What if?

What we do know is that [defendant] suffers from a delusional disorder paranoid type and has a narcissistic personality disorder. Certainly these diagnoses by themselves are not determinative.

It is the lifestyle that he has chosen, the swinging while married, his relationship with [G.H.] for ten years despite her struggles with mental illness and substance abuse, his involvement with prostitutes, hiring a 14-year-old prostitute to serve as a caregiver for a child with special needs, the pornography throughout his home, his delusion of being a CEO of a Fortune 500 company, and most importantly, his inability to recognize that any of these things have brought him to where he is today, and that as a result, [A.S.K.]'s health and development have been impaired. That caused great concern for this Court. His lifestyle and behavior is consistent with the diagnosis given by Dr. Jeffrey.

[Defendant] argues that this guardianship matter should be dismissed and the F[N] matter reopened so he may be offered an opportunity to engage in services that would address his parenting and anger management and allowed to become involved in his daughter's life again.

[Defendant] is 66-years-old. He has likely maintained the lifestyle discussed above for most of his adult life. He does not believe that there is anything wrong. He believes everyone involved is out to get him, has lied, or has set him up.

On the other hand, [A.S.K.] is a child who suffers from learning disabilities; ADHD, PTSD, and petit mals absence seizures. These seizures were either present but not treated while she was in [defendant]'s care or are occurring as a result of what happened to her. It is notable that she seemed to exhibit them only [as] she resumed contact with [defendant].

[A.S.K.] is now in a place where she has developed a secure attachment with foster parents who wish to provide a permanent home for her. To agree with [defendant]'s proposal would amount to waiting another year to see if he has made progress significant enough to safely return [A.S.K.] to his care, commence visits, and see what effect they have on [A.S.K.].

This would further postpone a permanent plan and leave her in limbo indefinitely. The risk is too high; the probability of success, too low.

Accordingly, this Court finds that under the circumstances of this case, the Division has made reasonable efforts to provide services to help both parents remedy the circumstances that led to [A.S.K.]'s placement, and at this time, neither parent is able to provide a safe and stable home for her.

Determination of what efforts are reasonable requires a case-by-case evaluation. We are satisfied that, in the circumstances of this case, the judge did not err in concluding that the Division did all it reasonably could be expected to do to correct the circumstances that led to A.S.K.'s placement outside the home and that the court considered alternatives to termination.

The fourth prong requires proof that termination of parental rights will not do more harm than good. This does not require a showing that no harm will result. K.H.O., supra, 161 N.J. at 355. The inherent risk of harm from severance of parental ties must be weighed against the paramount need for children to have permanent and defined parental relationships. Ibid. The court must balance the two relationships and decide whether the child would "suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid. This comparative determination requires expert testimony specifically directed to the strength of each relationship. Ibid.

As we have stated, Judge Melendez credited Dr. Jeffrey's testimony concerning the results of her bonding evaluation with A.S.K.'s current foster parents. Jeffrey found a secure attachment with the foster parents and that A.S.K. has an "affectionate tie to them, responds to their authority, and bases her sense of security in her relationship with them." Jeffrey concluded that removal from their care would "place [A.S.K.] at risk for serious and enduring harm," which may manifest itself through symptoms similar to the grieving process. Jeffrey further opined that defendant would be incapable of diminishing that harm, both because his self-absorption would cause him to fail to notice it and because he lacks the needed parenting skills.

The judge acknowledged that A.S.K. expressed a preference to return to defendant, to whom she referred as "daddy," and noted their mutual love for each other. However, the judge also noted that A.S.K. is "happy to stay where she is." All parties agree that the wishes of the child, while entitled to some consideration, do not control the required comparative analysis. Judge Melendez also considered A.S.K.'s foster history and the lengthy period of delays she has endured in waiting for permanency. Overall, the judge concluded that termination of parental rights would not do more harm than good. This finding is supported by adequate, substantial, credible evidence in the record, and we defer to it.

III

Defendant argues that he was denied effective assistance of counsel in the termination proceeding because, notwithstanding his request, his trial counsel did not move for Judge Melendez to recuse herself. The basis for recusal is that Judge Melendez formerly served as an attorney for DYFS who prosecuted termination of parental rights cases before she was appointed to the bench. Defendant also contended that Judge Melendez might have served in her prior capacity contemporaneously with the deputy attorney general representing DYFS in this case. In a related argument, defendant also argues on appeal that because the judge did not recuse herself, the guardianship judgment should be reversed and a new trial should be ordered.

Ineffective assistance of counsel claims in termination of parental rights cases are properly raised on direct appeal. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007). To succeed, a defendant must demonstrate a reasonable likelihood of succeeding under the Strickland/Fritz test. Thus, the defendant must satisfy two prongs, first demonstrating that counsel's performance was deficient, and second, that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Under the unique framework of an ineffective assistance of counsel claim in a termination of parental rights case, the defendant must provide an evidentiary proffer or certification of information supporting the alleged grounds for ineffective assistance if that information lies outside the trial record. B.R., supra, 192 N.J. at 311. If a genuine issue of material fact is presented, we are required to remand for an accelerated hearing and the parties would file supplemental briefs. Ibid.

Defendant has not made the requisite threshold showing to warrant a remand for an evidentiary hearing. Judge Melendez's prior experience as a deputy attorney general representing DYFS in termination cases does not disqualify her, years later, from later presiding over such cases as a judge. And, in response to defendant's bald assertion that when Judge Melendez handled such cases in the Attorney General's Office she may have been an associate of trial counsel in this case, that trial counsel has certified to the contrary.

Defendant points to another circumstance, of which appellate counsel has become aware while conducting research for the appeal, namely that Judge Melendez has been a supporting member of the National Association of Counsel for Children (NACC). Appellate counsel argues that because of this apparent affiliation, Judge Melendez should have recused herself from presiding over this case. Counsel relies upon Rule 1:12-1(f), which provides for disqualification in any matter "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so."

The information provided by defendant in his appellate appendix indicates that the mission of the NACC is "[t]o achieve the well-being of children by promoting multidisciplinary excellence in children's law, establishing the legal interests of children and enhancing children's legal remedies." We agree with the Division that the judge's support of this organization does not create a reasonable belief that it would preclude a fair and unbiased hearing and judgment. The apparent purpose of the organization is merely to advocate justice for children in the courts, which is consistent with the responsibilities of a judge presiding over cases involving the best interests of children.

 
We therefore conclude that there was no basis for Judge Melendez to recuse herself. Accordingly, defendant's trial counsel was not deficient for declining to move for her recusal. Even if failure to make such a motion was deficient conduct, the second Strickland/Fritz prong would not be met, because the outcome of the proceeding would not have been different.

Affirmed.

G.H.'s parental rights were also terminated in this proceeding, but she is not implicated in this appeal.

As discussed infra, the record does not reflect what information was available to Judge Page when he issued this order.

Dr. Cooke's opinion pertained only to defendant's psychological condition and did not address his ability to parent or provide a safe home for A.S.K.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Judge Melendez was appointed to the Superior Court effective July 15, 2002, more that five years before this trial.

(continued)

(continued)

36

A-3259-07T4

RECORD IMPOUNDED

March 27, 2009