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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3022-07T43022-07T4

A-3414-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.M.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF J.R.,

Minor.

________________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.R.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF J.R.,

Minor.

________________________________________

 

Submitted June 3, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-26-07.

Yvonne Smith Segars, Public Defender, attorney for appellants J.M. and N.R.

(Colleen A. McCarthy, Designated Counsel, of counsel and on the brief in A-3022-07T4; Catherine F. Reid, Designated Counsel, on the brief in A-3414-07T4).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this consolidated action, the mother N.R. and the father J.M. appeal from the order of December 19, 2007, terminating their parental rights to J.R., a son born to them on October 20, 2005. The law guardian for J.R. supports the termination of parental rights. We affirm.

I

At the time of the child's birth, both parents were incarcerated on federal charges arising from trafficking in illegal aliens. After giving birth, N.R. advised the Division of Youth and Family Services (DYFS) that she planned to place J.R. with B.T., the daughter-in-law of a friend she knew from church. Because N.R. had never met B.T., DYFS questioned this placement, obtained custody of the child, and placed the child in a foster home where he remains.

Shortly after the child's birth, B.T. traveled to New Jersey and met with DYFS personnel explaining that she was willing to take care of the child. She indicated her willingness to comply with the procedures for a DYFS evaluation to have her home approved, and left with DYFS a copy of her and her husband's passport. DYFS never conducted an evaluation of her.

The parents provided the DYFS caseworker with the names of numerous relatives whom they thought might be able to care for the child. Many of these relatives were unable or unwilling to do so. One relative, living in Honduras, already was caring for eleven children. One family in Connecticut eventually expressed a willingness to care for the child, but by the time it obtained the necessary licensing from the Connecticut authorities to do so, the child was already a year old. At that point, DYFS was looking for a placement with caregivers willing to adopt, and this family was unwilling to commit to adoption.

Prior to the child reaching the age of one year, the mother N.R. and the father J.M. each pled guilty to conspiracy to commit forced labor, commission of forced labor, and harboring illegal aliens. Neither had been sentenced by the time of the termination hearing before the trial court, although sentencing was expected to take place within a month. However, due to the nature of the charges, they faced the potential of lengthy prison sentences, although they were hoping to be sentenced to time served. They faced deportation to their native countries upon completion of their sentences. The mother is a native of Honduras, and the father is a native of El Salvador.

The parents were subsequently sentenced in January 2008, less than three weeks after the termination hearings. The mother, N.R., received an aggregate sentence of seventy-eight months with a projected release date of October 10, 2010. The child, J.R., would be about five years old by that time. The father, J.M., received an aggregate sentence of fifty-one months, with a projected release date of October 23, 2008, when the child would have reached the age of three.

At the trial on termination of parental rights, DYFS presented the testimony of a DYFS worker and Ernesto L. Perdomo, Ph.D., a clinical psychologist. The defense presented no witnesses.

Dr. Perdomo conducted psychological evaluations of the parents, N.R. and J.M., and a bonding evaluation of J.R. with his resource parent. He did not conduct a bonding evaluation of the biological parents because the parents were incarcerated. In fact, they had very limited contact with the child due to their incarceration.

Dr. Perdomo found both parents to be free of major psychiatric or mental disorders, although immature. He opined that both were capable of parenting their child; they had positive qualities to help them provide for the child; and they would not present a risk to the child.

Dr. Perdomo found that J.R., who was one and one-half years old at the time of the evaluation, was developing appropriately, and appeared to be "well taken care of." The child was bonded to his resource mother. Dr. Perdomo stated in his report dated April 20, 2007, that:

As his bonding and emotional attachment to [his resource mother] increases, it will become internalized to the point that any separation will be significantly traumatic and cause enduring harm to this child's emotional development. This trauma would include depressive reactions due to separation from the most supportive person in his life as well as it will affect his ability to trust others and relate to other people.

At trial, Dr. Perdomo explained that it is "essential to develop a very strong bonding between the child and the primary caretaker, and that bonding is developed very young in life, in the first two years of life." He testified that if the child were removed from his resource parent, the child would suffer irreversible emotional damage and "his ability to trust and to form relationships" would be "significantly jeopardized." Because the child had developed no bond with his biological parents, he concluded that the child would suffer no harm by terminating their parental rights. Applying the four prong test set forth in N.J.S.A. 30:4C-15.1, and accompanying case law, the trial court terminated the parental rights of N.R. and J.M.

N.R. raises the following issues on appeal:

I. THE DIVISION'S HANDLING OF THE CASE ACTUALLY CREATED THE GROUNDS ON WHICH IT ULTIMATELY SOUGHT TO TERMINATE PARENTAL RIGHTS, AND THEREFORE, THE TERMINATION VIOLATED N.R. AND J.M.'S SUBSTANTIVE DUE PROCESS RIGHTS AND CANNOT BE ALLOWED TO STAND.

II. THE TRIAL COURT'S DECISION WAS BASED ON A MISAPPLICATION OF THE LEGAL STANDARDS INVOLVED. MOREOVER, IT WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS TO THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. The Trial Court's Legal Conclusion that N.R. Had Harmed J.R. Is Incorrect Since Its Conclusion that N.R. Abandoned J.R. Is Based on a Misunderstanding of the Legal Principle of Abandonment and Its Finding that N.R. Failed to Plan for J.R. Is Not Supported by Evidence.

B. There Was Not Clear and Convincing Evidence to Support the Trial Court's Determination that N.R. and J.M. Are Unable to Eliminate Harm to J.R.

C. There Was Not Clear and Convincing Evidence to Support the Trial Court's Determination that the Third Prong of the Statute, Which Is Aimed at Avoiding Termination of Parental Rights If Possible, Was Satisfied.

a. The record does not support a finding that the Division made reasonable efforts in this case. In fact, in some instances, the Division's actions were patently unreasonable, violated court orders and caused the trial court to threaten sanctions.

b. The trial court failed to adequately consider alternatives to termination of parental rights, including kinship legal guardianship by the [V. family].

D. In Concluding that Termination of N.R. and J.M.'s Parental Rights Would Not Result in More Harm Than Good, the Trial Court Misapplied the Legal Principles Involved.

III. THE TRIAL COURT'S CONDUCT OF THE TRIAL VIOLATED THE DEFENDANTS' PROCEDURAL DUE PROCESS RIGHTS AND UNDERMINED THE ADVERSARIAL PROCESS SUCH THAT THE RESULT CANNOT BE ALLOWED TO STAND.

A. The Trial Court Denied N.R. the Opportunity to Confront the Adverse Witness in Several Critical Areas, Violating Her Procedural Due Process Rights.

B. The Trial Court Abused Its Discretion by Finding that the Division's Failure to Send a Rule-Out Letter to D. R. Was Immaterial to the Outcome of the Case. The Failure to Send Rule-Out Letters Undercuts the Trial Court's Determinations on Prongs Two and Three of N.J.S.A. 30:4C- 15(1)(a) [sic].

C. Judge Sabbath's Prejudice Against the Parents in This Case Was All Too Evident and Undermines Confidence in the Trial Court's Result.

J.M. argues these issues on appeal:

POINT ONE

THE TRIAL COURT ERRED IN TERMINATING J.M.'S PARENTAL RIGHTS TO J.R. BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE PRESENTED AT TRIAL DO NOT SUPPORT THE LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE STATUTORY TEST UNDER N.J.S.A. 30:4C-15.1(a) FOR TERMINATION OF PARENTAL RIGHTS WERE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.

A. THE EVIDENCE PRESENTED AT TRIAL FAILS TO SUPPORT THE TRIAL JUDGE'S FINDING THAT THE CHILD'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE SERIOUSLY IMPAIRED BY THE PARENTAL RELATIONSHIP.

B. DYFS FAILED TO SHOW THAT J.M. IS UNABLE OR UNWILLING TO ELIMINATE THE HARM AND DELAYING PERMANENT PLACEMENT WILL ADD TO THE HARM.

C. THE TRIAL COURT ERRED IN FINDING THAT DYFS MADE DILIGENT EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT AND DILIGENTLY PURSUED ALTERNATIVES TO THE TERMINATION OF J.M.'S PARENTAL RIGHTS.

D. THE TRIAL COURT ERRED IN FINDING THAT THE TERMINATION OF J.M.'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

II

Parental rights will be terminated when by clear and convincing evidence it is established that to do so is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008). In evaluating whether parental rights should be terminated under this standard, the courts apply the four part test first enunciated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a). Under that test, the following four prongs must be proved by clear and convincing evidence in order to terminate parental rights:

(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-15.1(a); see also N.J. Div. of Youth & Family Servs. v. E.P., supra, 196 N.J. at 103.]

These four prongs "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).

We have considered the trial court's decision in light of these legal standards. In our review we are mindful that we may not disturb the factual findings of the trial court "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We conclude that the trial court's decision to terminate parental rights was supported by clear and convincing evidence in the record. We, however, are compelled to qualify its analysis of the first prong.

The first prong requires proof that the parental relationship has been or will continue to endanger "[t]he child's safety, health, or development." N.J.S.A. 30:4C-15.1(a)(1). In determining that this prong had been met, the trial court found that "defendants did not make any type of plan or attempt to make any type of plan, while they were in jail, for the care of the child." The trial court concluded that the parents' failure to provide a plan for the child coupled with the incarceration that prevented them from caring for the child constituted abandonment.

We do not find sufficient evidence in the record to support a conclusion that the parents had no plan for the child. In fact, the mother had located B.T. who was willing to care for the child, and nothing in the record indicates that she was an inappropriate caretaker for the child. The fact that the mother had never met the woman under the circumstances was excusable, since the mother was in jail and the woman lived in Florida. While presumably further inquiry would be necessary before the child could be placed in B.T.'s care, it is not accurate to say under the circumstances that the parents had made no plans for the child.

Despite the fact that the parents did have a plan for the care of the child, the first prong has been met, due to the second reason given by the trial judge, namely that the parents were incarcerated. As the Court has acknowledged, "[i]ncarceration may be relevant to the termination of parental rights on the basis of abandonment." In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993). The fact that a parent is imprisoned is not necessarily a sufficient basis to terminate parental rights. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). "[I]t is by no means settled or obvious that incarceration is so inimical to the [parental] relationship as to justify its termination as a matter of law." Ibid. (quoting In re Adoption of Children by L.A.S., supra, 134 N.J. at 137) (second alteration in original). In such a circumstance, the trial court must conduct a "broad inquiry" to determine the "overriding questions of parental fitness and the best interests of the child." Ibid. Among the factors to consider are limitations on a parent's ability to care for and nurture the child because of the imprisonment, the expected length of the period of incarceration, the nature of the parent-child relationship before the imprisonment, the nature of the crime, the parent's criminal disposition and the potential for rehabilitation, whether continuation of the parental relationship will undermine the child's need for stability and permanency. Ibid.; In re Adoption of Children by L.A.S., supra, 134 N.J. at 138-142.

In this case, the evidence established that a critical period in a child's development occurs between birth and the age of two when a child bonds with his caregiver. During this critical period for J.R., the parents were incarcerated, and he was unable to bond with them; indeed their period of incarceration extends beyond this two year period. As a result, due to the fact that the parents had no relationship with the child that provided him with nurture or sustenance or that would harm him if disrupted, the length of the parents' incarceration that prevented them from caring for him during this crucial period, and the child's need for permanence and stability, the incarceration of the parents amounted to an abandonment satisfying the first prong.

The trial court's findings on the second, third, and fourth prongs are supported by the record. We reject defendants' argument for kinship legal guardianship pursuant to N.J.S.A. 3B:12A-1 to -7, because kinship legal guardianship is not appropriate when adoption is likely or feasible. See N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003). The balance of the arguments in defendants' appeals do not merit further discussion. R. 2:11-3(e)(1)(E). The judgment of the trial court terminating the parental rights of N.R. and J.M. is affirmed.

Affirmed.

 

(continued)

(continued)

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A-3022-07T4

RECORD IMPOUNDED

July 13, 2009