NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.H., SR.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3575-07T43575-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.H., SR.,

Defendant-Appellant.

_______________________________________________________

IN THE MATTER OF THE GUARDIANSHIP OF K.H., JR.,

a minor.

_______________________________________________________

 

Argued January 12, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-20-65-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Catherine F. Reid, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant K.H., Sr. appeals from a February 11, 2008 order by the Chancery Division, Family Part, which terminated his parental rights to his son K.H., Jr. (Kevin). Kevin's mother, C.B., has a long history of substance abuse which continued throughout the pendency of this case. Her parental rights were terminated by default. She has not appealed that decision. Based on our careful review of the record, we conclude that there is ample evidence to support the trial court's decision as to defendant. We affirm.

We briefly state the relevant facts. On March 1, 2005, Kevin was born premature, with medical problems and with heroin, cocaine and methadone in his system. He was placed in foster care pursuant to parental consent before he was released from the hospital. Defendant has a drug-related criminal history that includes two arrests for possession of a controlled dangerous substance (CDS) in August 2006 and February 2007, and another arrest in 2007 for violation of probation. The record supports that he has a history of drug use, although he denies it.

For almost two years, defendant made no efforts towards reunification, failing to comply with services ordered by the court and offered by the Division of Youth and Family Services (DYFS or Division). While defendant now blames his delayed compliance on scheduling conflicts and lack of notice, the record shows that the Division made extensive efforts to provide services to defendant. Moreover, defendant admitted that the lengthy delay in seeking reunification was, in part, the result of him not taking the matter seriously and assuming that his sister would get custody of Kevin.

In addition, the record shows that defendant avoided drug screenings and submitted water in his urine samples. He has no stable housing and changed addresses several times, living at the homes of different people. During the guardianship trial, he spent two months in jail and was awaiting a determination as to violation of probation for a prior sentence.

Kevin never lived with his parents. Not unexpectedly, both the Division's and defendant's own expert agreed that Kevin does not have a significant bond to defendant. By the end of the guardianship trial, Kevin had been with his current foster parents for one year, and he is thriving in their care.

On appeal defendant makes the following arguments:

THE TRIAL COURT APPLIED INCORRECT LEGAL STANDARDS TO THE MATTER AND AS A RESULT ERRED IN TERMINATING K.H.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. [DEFENDANT] DID NOT HARM HIS CHILD WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1(a).

B. THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT [DEFENDANT] WAS UNWILLING AND UNABLE TO ELIMINATE HARM TO [KEVIN].

C. THE DIVISION'S EFFORTS TO REUNIFY FATHER AND SON WERE INSUFFICIENT TO SATISFY ITS OBLIGATION UNDER THE THIRD PRONG AND ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS WERE NOT ADEQUATELY CONSIDERED AS REQUIRED BY THE THIRD PRONG.

a. THE DIVISION'S EFFORTS WERE NOT REASONABLY CALCULATED TO LEAD TO THE REUNIFICATION OF [DEFENDANT] AND [KEVIN] AND DID NOT ATTEMPT TO ELIMINATE BARRIERS TO THE UTILIZATION OF SERVICES.

b. THE TRIAL COURT APPLIED THE WRONG LEGAL STANDARD WHEN CONSIDERING ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

D. THE TRIAL COURT'S CONCLUSION THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD WAS UNWARRANTED AS THERE WAS NO EVIDENCE IN THE RECORD AS TO THE NATURE OF THE BOND BETWEEN [KEVIN] AND HIS CARETAKER AND NO EVIDENCE THAT KEVIN WOULD SUFFER HARM IF SEPARATED FROM HIS CARETAKER.

Our analysis of defendant's contentions is guided by well established legal principles. "Parents have a fundamental constitutional right to raise their children." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). Rather, parental rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The best interests of the child ("best interests") standard governs this balance and has been codified in N.J.S.A. 30:4C-15.1. Ibid. A court can terminate parental rights when the Division shows by clear and convincing evidence 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) 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)(1)-(4).]

These "four criteria . . . are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Termination of parental rights is a severe state action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The consideration involved in this inquiry is "extremely fact sensitive and requires particularized evidence that address the specific circumstances in the given cases." K.H.O., supra, 161 N.J. at 348.

On appeal, the scope of our review of a trial court's fact-finding function is limited. Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974)).

Defendant contends that "the trial court applied incorrect legal standards to the matter and as a result erred in terminating [defendant]'s parental rights where there was no clear and convincing proof sufficient to satisfy the four prongs of N.J.S.A. 30:4C-15.1(a)." We disagree.

As to prong one, defendant contends that he "did not harm [Kevin] within the meaning of N.J.S.A. 30:4C-15.1(a)." For the first prong of the best interests standard, the court must consider the harm that arises from the child-parent relationship. K.H.O., supra, 161 N.J. at 348. In this context, harm refers to "the endangerment of the child's health and development resulting from the parental relationship, and it may constitute one egregious harm or "the effect of harms" over time. K.H.O., supra, 161 N.J. at 348. In addition, it includes the risk for future harm. N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1(a)).

Notably, a mother's use of narcotics or alcohol during her pregnancy does not constitute abuse or neglect unless that child is born with signs of related consequences. K.H.O., supra, 161 N.J. 349-51. However, "an infant born addicted to drugs and suffering the resultant withdrawal symptoms has suffered harm that endangers her health and development within the meaning of [the statute]." Id. at 351 (citations omitted). While each parent is assessed individually and the conduct of one parent is not imputed to the other "'merely because of the marital relation,' . . . the conduct of one parent can be relevant to an evaluation of the parental fitness of another parent. The determinative issue is whether the circumstances surrounding the parental relationship . . . cause harm to the child." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 288 (2007) (citations omitted).

In M.M., the Court determined that "[a]lthough the father [did] not pose a direct threat to his son, . . . he did not provide for the son's special needs or mitigate the effects of the harmful environment in which he intends to raise the son." Id. at 268. In that case the child had been born with complications due to overexposure to alcohol as a fetus and the father lived with the mother. Id. at 269. The Court noted that "[a] parent is unfit if he or she is unable or unwilling to prevent harm to the child irrespective of the source of the harm." Ibid. (citing N.J.S.A. 30:4C-15.1(a)(2); In re Guardianship of R.G.L., 344 N.J. Super. 418, 438-39 (App. Div. 2001)).

In the present case, Kevin was born with heroin, cocaine and methadone in his system. The trial judge did not believe defendant's testimony that he was unaware that C.B. was still using drugs or that he did not know that she was pregnant. In addition to this being an issue of credibility for which we give substantial deference to the trial court, the court's finding is supported by evidence that while C.B. was pregnant with Kevin, (1) defendant was living with her; (2) she was using five to six bags of heroin per day; and (3) defendant had been involved with her for approximately six years and knew of her drug problems. Notwithstanding that Kevin was born with three different drugs in his system and medical problems and that C.B. continued to use drugs after his birth, defendant's plans for childcare while he was at work included C.B. as a caretaker.

More importantly, a child's unfulfilled need for a permanent home is a harm under this prong. N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super 582, 591-92 (App. Div. 1996). Likewise, a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O, supra, 161 N.J. at 352-54). In D.M.H., the Court concluded that the child being born with heroin in his system was a harm that "was compounded by [the father]'s persistent failure to perform any parenting functions and to provide nurture, care, and support for [the child] for over three years." 161 N.J. at 380. The Court held that the father's inaction "constitute[d] a parental harm to that child arising out of the parental relationship and cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380 (citing K.H.O., supra, 161 N.J. at 352-54).

Here, despite multiple court orders, referrals to services and letters regarding scheduled appointments, it took defendant almost two years to start working towards reunification. Although his testimony in this regard is full of contradictions, he admitted that he was not working until at least July 2005 and that he did not take the court orders seriously because he was sure that his sister would obtain custody of Kevin.

The trial judge found that defendant delayed any compliance with services and failed to obtain stable housing, prolonging Kevin's placement in foster care. Defendant's failure to act is a harm recognized by law. See D.M.H., supra, 161 N.J. at 380; K.H.O., supra, 161 N.J. at 352-54. The trial judge's decision is supported by clear and convincing evidence that defendant harmed Kevin.

Under prong two, defendant contends that "there was no clear and convincing evidence to support the trial court's determination that [defendant] was unwilling and unable to eliminate harm to [Kevin]." This second element of the best interests standard "relates to parental unfitness," which "may be established in several ways," including: (1) "the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development in the first place" and (2) "the parent has failed to provide 'a safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352. This element "may be met by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home, and the withholding of parental attention and care." Id. at 353.

In the case at bar, the trial court relied on the testimony of Dr. Jason S. Fleming, the Division's expert, that defendant is unable to "keep [Kevin] from a risk of harm and that [defendant] would rely, primarily, upon family members," who have problems of their own. The judge expressed concern regarding defendant's plans to rely on the mother and his apparent inability to realize that she is incapable of helping herself and cannot help a three-year-old child.

Defendant relies on the opinion of his own expert, Dr. Gerard A. Figurelli, who opined that if defendant addressed his housing and financial problems and his co-dependent relationship with C.B., then he "has the capacity to act adequately in his role as a parent." However, Dr. Figurelli testified that he might have had additional concerns had he known that defendant avoided drug screenings and gave water as a urine sample. "A trial court is free to accept or reject the testimony of each side's expert, and need not adopt the opinion of either expert in its entirety." Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002) (citing Carey v. Lovett, 132 N.J. 44, 64 (1993)). Here, consistent with Dr. Fleming's opinion, the trial court determined that defendant is not capable of caring for Kevin. We are satisfied that the record supports that determination.

During the three years while Kevin remained in placement, defendant failed to show a desire or an ability to obtain stable housing and to address other issues related to reunification. Significantly, the record demonstrates that defendant has substance abuse issues. Yet, this problem has not been addressed because defendant was not forthcoming in any of his evaluations.

Defendant's recent arrests for possession of CDS and his subsequent arrest for violation of probation add to the concerns about his ability to provide safe and stable care to Kevin. Accordingly, the trial judge found that (1) defendant's attitude made him a poor candidate for services; (2) defendant's delay in obtaining services allowed Kevin to bond to his foster parents; (3) despite being almost fifty-years-old, defendant lacked stable housing and failed to show ability to acquire stable housing throughout the year-long litigation; and (4) defendant's legal problems might make him unavailable to parent, as he spent two months in jail during the course of the guardianship trial and was "waiting for a determination as to another sentence that [he] had gotten somewhere prior to that." We agree with the trial judge and conclude that defendant's behavior constitutes the parental dereliction and irresponsibility that satisfies this prong.

Next, defendant contends that the Division failed to meet the third prong of the best interests test. The third prong "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child." K.H.O., supra, 161 N.J. at 354. Such efforts must include, "so far as practicable . . . welfare services to support and maintain the integrity of the family as a living unit." N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 608 (1986). As part of this inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 435 (citing N.J.S.A. 30:4C-15.1(a)(3)).

Here, the record supports the trial court's finding that the Division offered defendant many services from the beginning, although defendant complied with only some of them, and not until late in the case. Yet, defendant contends that the Division failed because it did not place Kevin with defendant without requiring any type of evaluation. First, defendant's contention is unsupported by case law because he lived with C.B. at the time and claimed to work all day, although at trial he stated he was not working at the time. See, e.g., M.M., supra, 189 N.J. 261, 268-69. Second, there were valid concerns regarding defendant's own substance use. Finally, defendant admitted at trial that he was "lax" about the services the court ordered him to complete because he thought his sister would get custody of Kevin. Thus, defendant's alleged desire to have Kevin in his custody is contradicted by his early failure to comply with any service, except visitation, for almost two years, as well as by his testimony that his plan was for his sister to have custody of Kevin.

Defendant complains about the scheduling of visitations and services claiming inconvenient times and lack of notice. However, notices were sent to the addresses provided by defendant and typically advised him to call to reschedule if he could not attend an appointment at the scheduled time. Often, he was also offered transportation.

Defendant had plenty of opportunities to address his alleged difficulties during the first two years of placement, including periodic court reviews and visits when he had contact with the Division. As the trial judge noted, the record shows that defendant does not have a problem speaking his mind. Nonetheless, defendant testified that he did not think he "ever told [the Division] the nature of [his] employment." Accordingly, the judge did not believe that defendant sat passively during the entire time because he did not know he could ask for different times for appointments.

The court observed that the Division had considered several relatives as resources, all of whom were ruled out. The paternal and maternal grandmothers, defendant's sister living out of state and most of the other relatives and family friends named by the parents were either unwilling or unable to care for Kevin. Defendant did not name his adult child as a potential caregiver until March 2007. That was in the midst of the guardianship trial and two years after Kevin had been in placement. In addition, that daughter had some problems of her own, with five children and insufficient income, and she stopped corresponding with the Division. After the assessment of the house of defendant's other sister, and her apparent unwillingness to make her home fit for a medically fragile child, the Division sent her letters requesting contact. There is no indication in the record that she ever responded.

In light of all the circumstances, we are satisfied that the Division met the third prong by clear and convincing evidence.

The fourth prong of the best interests standard seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1. The focus "is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." Id. at 108. This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). Defendant contends that "the trial court's conclusion that termination would not do more harm than good was unwarranted as there was no evidence" of Kevin's bond with the foster parent with whom Kevin had been living for one year.

Because of the inherent risk to children stemming from termination of parental rights, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. (citing J.C., supra, 129 N.J. at 25). Thus, typically, to satisfy this prong, the Division should, "offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19). In a recent decision, brought to our attention by defendant, a panel of this court stated that there are "very few scenarios in which comparative evaluations would not be required." N.J. Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009).

In the case at bar, because of Kevin's special needs, the Division initially placed him in a foster home specialized in medically fragile children, which was not a pre-adoptive home. It was only after the trial court approved, in January 2007, the Division's permanency plan of termination of parental rights followed by adoption, that the Division placed Kevin in a pre-adoptive home. Therefore, at the beginning of the trial, Kevin had been with his current caretakers for no more than three months. As such, a bonding evaluation would have been premature at that time.

We conclude that this case represents one of those instances where the absence of a comparative bond was not required. First, there are expert opinions, including that of defendant's own expert, that Kevin is not bonded to defendant. Thus, even if there was an insufficient period of contact between Kevin and the prospective adoptive parents, the comparison to defendant would not be better. Second, we are satisfied that there is no prospect of reunification with defendant in the foreseeable future, despite the lengthy opportunity defendant had to work towards that goal. Finally, Kevin is, in a brief span of time, thriving in the care of his foster parents who wish to adopt him.

In J.C., supra, 129 N.J. at 19, relied upon by defendant, the Court held that "[i]n cases in which DYFS seeks termination of parental rights, not on grounds of current unfitness but because of potential harm to the child based on separation from a foster parent with whom the child has bonded, . . . DYFS must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." Id. at 18-19 (citations omitted). "Such proof should include the testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with the foster parent." Id. at 19. In J.C., the Division had stipulated to several factors of the mother's improvement and stability during the prior two years, and grounds for termination focused on the stability of the children in the care of their foster parents and the harm that would result from removing them from their foster homes. Id. at 15, 17.

Similarly, we recognize that in G.L., the Court found that the fourth prong alone "does not provide an independent basis for termination where the other standards have not been satisfied." 191 N.J. at 609. In that case, DYFS failed to show clearly and convincingly that the mother had harmed the child and that she was unwilling or unable to eliminate the threat posed by her husband to the child. We note that in the case at bar, the Division has met the first three prongs clearly and convincingly.

Recently, the Court reiterated the need for the Division to show "'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" E.P., supra, 196 N.J. at 108 (quoting J.C., supra, 129 N.J. at 19). In E.P., the Court "confront[ed] the case of an almost thirteen-year-old, psychologically fragile girl, who has bounced around from one foster home to another, and whose only enduring emotional bond is with her mother." Id. at 109. In addition, "the Division did not have any particular home in mind for adoption" and one of its adoption specialists "recounted from her experience that it could take two to three years to find a placement for an older child." Id. at 98. Accordingly, the Court "recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." Id. at 109 (citing A.W., supra, 103 N.J. at 610-11).

The present case is factually distinguishable from E.P. because Kevin is not bonded to defendant, and he is already placed in a pre-adoptive home. This case shows that there will be instances where, the bond between a child and his or her foster parent might not have fully developed at the time of trial because placement in a pre-adoptive home was not appropriate until adoption became the permanency plan. Nonetheless, where as in this case, the child is not bonded to the biological parent, and where there is no prospect of reunification, and where the foster parent wishes to adopt, it is unlikely that termination of parental rights will do more harm than good.

Notably, we apply the best interests standards in light of New Jersey's strong public policy in favor of permanency. K.H.O., supra, 161 N.J. at 357-58. Both federal and state law acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J 456 (2004). Here, permanency can be achieved only by termination of parental rights.

 
Affirmed.

In order to avoid confusion, we use the fictitious name, Kevin, to refer to the child.

(continued)

(continued)

21

A-3575-07T4

RECORD IMPOUNDED

May 19, 2009