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

(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NOT FOR PUBLICATION WITHOUT THE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-3665-07T43665-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.C.,

Defendant-Appellant.

 

IN THE MATTER OF THE

GUARDIANSHIP OF D.M., a minor.

 

 

Submitted April 22, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-264-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel; Theresa A. Nitti, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; George M. Macchia, Deputy Attorney General, on the brief).

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

PER CURIAM

In this parental termination case, D.C., the biological father, appeals from a judgment of guardianship terminating his parental rights to two-year-old, D.M. He contends that the New Jersey Division of Youth and Family Services (DYFS) failed to establish that termination of his parental rights was in the best interests of D.M. and that he was denied his constitutional right to procedural due process. We disagree and affirm for the following reasons.

We start with the observation that D.C. was incarcerated for all but three months of the time between D.M.'s birth on January 17, 2006 and the entry of judgment on February 15, 2008. His criminal record includes convictions for burglary and violation of probation (1989), possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone (1994), possession of a controlled dangerous substance with intent to distribute and violation of probation (1999), possession of a controlled dangerous substance (cocaine) with intent to distribute within 1000 feet of a school zone (2004), possession of a controlled dangerous substance (crack cocaine) with intent to distribute within 1000 feet of a school zone (2004), receiving stolen property (2006), and possession of an imitation controlled dangerous substance with intent to distribute (2007). At the time of entry of judgment, D.C. was serving a three-year custodial term imposed on March 30, 2007, on his last conviction.

At birth, his son, D.M., tested positive for cocaine, benzodiazepine, and ethanol. DYFS was notified and the baby was placed in the hospital's protective custody. At a family team meeting on January 19, 2006, T.M. identified D.C. as the baby's father. Although she did not know where D.C. could be found, she provided DYFS with his full name, birth date, social security number and cell phone number.

Neither T.M. nor D.C. attended the January 23, 2006 custody hearing. DYFS presented evidence that T.M. had seven children in addition to D.M. and that her parental rights had been involuntarily terminated as to five of them. The remaining two children were not in T.M.'s custody. At the time, DYFS did not know D.C.'s whereabouts. As D.M. had been medically cleared for discharge, the Division requested that he be placed with a foster family. The Family Part judge granted that request, appointed a law guardian, executed an "Exception to the Requirement of Reasonable Efforts to Reunify" order relieving DYFS of its obligation to provide reasonable efforts to reunify D.M. with his mother, T.M., and placed D.M. under DYFS' custody and supervision. To date, D.M. continues to reside with his foster parents, with whom he has bonded and who desire to adopt him.

A fact-finding hearing was held on February 15, 2006, which D.C. did not attend, because he had not yet been located. At the hearing, T.M. admitted to a history of cocaine abuse and, in fact, to using cocaine shortly before coming to court that day. The judge determined that D.M. was an abused or neglected child and ordered that he remain in DYFS' custody. The judge also directed DYFS to provide services to T.M. and to initiate a search for D.C.

On March 3, 2006, DYFS learned that D.C. was incarcerated in the Union County Jail in Elizabeth, and a DYFS caseworker arranged for D.C. to be served with "the court documentation." Consequently, both T.M. and D.C. were present at the April 20, 2006 compliance review/permanency hearing, although D.C. was not represented by counsel. At that time, D.C. requested an attorney and a paternity test. In fact, that very same day, D.C. provided samples for a paternity test, which, on May 16, 2006, indicated a 99.99% probability that D.C. is D.M.'s father. In any event, the DYFS caseworker testified, at the hearing, that reunification with D.C. was not possible, because D.C. was currently incarcerated and that, due to his incarceration, DYFS had not been able to provide him with services. The judge ultimately issued a permanency order, determining that foster home adoption was an appropriate and acceptable permanency plan for D.M.

On June 26, 2006, DYFS filed a verified complaint and order to show cause for guardianship of D.M. However, D.C. was not immediately served with the guardianship complaint and paperwork to request counsel because of difficulty locating him within the prison system. Apparently, D.C. had been released from prison into a drug treatment program at Logan Hall, so while his prison records indicated that he was released, he was still in State custody. Consequently, at the August 16, 2006 case management hearing, the judge ordered DYFS to continue efforts to find D.C.

D.C. was eventually served with the guardianship complaint on October 3, 2006, the day before the next case management hearing, which he attended. Although D.C. had not been formally assigned counsel by then, an attorney was present with him at the October 4 hearing. D.C. represented that he would be released from the Logan Hall drug treatment facility very soon and that he wanted to be the plan for D.M. He also complained that he had not yet received the results of the paternity test. As a result, the judge directed DYFS to provide D.C. with the test results immediately (which the agency did on October 19, 2006); schedule psychological and substance abuse assessments for D.C.; arrange for visitations; and follow up on relatives that D.C. offered as alternative placements, namely his aunt, P.P., who lived in North Carolina, and his mother, D.C.M.

As directed, DYFS made arrangements for the court-ordered assessments and visitations. The psychological assessment, which was performed by Dr. Minerva Gabriel on November 15, 2006, found D.C. to be in the below average range of cognitive functioning with a poor self-concept and self-esteem issues. Gabriel recommended that D.C. attend parenting skills training, obtain counseling to help with self-esteem problems, participate in supervised visitation with D.M., find steady employment, get his own apartment, and attend classes to prepare for a G.E.D. Catholic Charities, which performed the substance abuse assessment, recommended that D.C. participate in further face-to-face interviews with drug counselors and undergo random urine screens. A urine screen performed on D.C. on October 31, 2006, came back clean. On November 30, 2006, D.C. had his first, and only, visit with D.M.

D.C. was present at the next case management hearing on December 15, 2006, and represented by counsel. The judge advised D.C. that he must follow Dr. Gabriel's recommendations. D.C. complained that he had not yet received the parenting skills training that he had requested in October and that he had no transportation. The judge then ordered DYFS to provide D.C. with a bus card, and further instructed that, although D.C. was not a realistic option for D.M. while he was incarcerated, DYFS was now required to provide D.C. with services and to give him an opportunity at reunification. The judge signed orders to expedite an interstate referral to assess the appropriateness of placing D.M. with D.C.'s aunt in North Carolina. A urine screen performed on D.C. that day tested positive for marijuana and cocaine.

As ordered, in January 2007, DYFS prepared referrals for D.C. to attend psychotherapy and parenting skills training and to obtain random urine screens. D.C., however, did not attend any of the scheduled counseling sessions in January or February 2007. He also did not visit with D.M. Indeed, D.C. was arrested on January 5, 2007 on a drug charge and taken into custody, where he remained, serving a three-year term of incarceration upon his conviction for that offense until his release on October 14, 2008, while this appeal was pending.

While D.C. did not appear for the April 18, 2007 case management conference because he was in the process of being transferred from the county jail to state prison, he was transported to the case management hearing on June 11, 2007, wherein the court was informed that the North Carolina authorities had ruled out P.P. as a possible placement for D.M. At a subsequent case management conference on August 8, 2007, which D.C. could not attend because of local flooding, the judge noted that no psychological evaluation of D.C. had, of yet, been performed because of difficulty locating him in the prison system, and ordered that such evaluation be completed immediately.

Consequently, Dr. Barry Katz, a clinical psychologist, evaluated D.C. at the Mid-State Correctional Facility on August 29, 2007. Based on testing, Dr. Katz diagnosed D.C. with a narcissistic personality disorder, an antisocial personality disorder, limited coping ability, problems with anger and problems with rigidity. He concluded that D.C.'s antisocial personality disorder, ongoing criminal activity, and instability in housing and employment would present an unhealthy situation for a child. He opined that D.C. "would not be an appropriate parent, would not have the ability to parent a child correctly in the near or foreseeable future."

Due to some logistical breakdown, D.C. was not transported to the November 14, 2007 pretrial hearing, but his attorney was present, and both attended the final pretrial conference on February 1, 2008. The guardianship trial was conducted over a four-day period in early February 2008, wherein DYFS caseworker

Kathy Williams testified that, in addition to visitation, DYFS offered D.C. parenting skills training, counseling, bus passes, psychological evaluations and substance abuse evaluations. As noted, D.C. had been referred to intervention specialists in January 2007; he did not attend any sessions because he was incarcerated at the time.

Dr. Joanne Schroeder, a clinical psychologist, testified concerning, among other things, a bonding evaluation she performed between D.M. and his foster parents. She concluded that D.M. had a secure attachment to his foster mother and a healthy relationship with his foster father. In her opinion, if D.M. were removed from his foster parents "he would experience despair, hopelessness, probably behavioral problems, acting out. And over the long term . . . he would, in all likelihood, develop oppositional, angry behavior." Stressing the importance of permanency in a child's life, Schroeder endorsed DYFS' plan that D.M. be adopted by his foster parents. On the other hand, Schroeder did not perform a bonding evaluation between D.M. and D.C., the latter conceding that there was no father-son bond.

On February 15, 2008, the trial judge rendered an oral decision, in which he considered each factor of the N.J.S.A. 30:4C-15.1(a) test, and, as applied to D.C., concluded that DYFS had established, by clear and convincing evidence, that termination of D.C.'s parental rights was in the best interests of D.M. Commenting on how the facts satisfied the best interests test, the judge stated:

Although it might not be a traditional situation, it's simply a situation of a parent not being there for the child the first two years of the child's life, not being there for the foreseeable future for the child and there being no indication that he [D.C.] is able to parent or would be any

time in the future even when he is released.

This reasoning was reflected in the court's February 15, 2008 permanency order, which stated that it was not safe to return D.M. to the home because "[t]he father is incarcerated, a lengthy criminal record, unresolved drug history and was noncompliant with services when he was not incarcerated." Accordingly, a judgment of guardianship was entered that same day terminating the parental rights of T.M. and D.C. to D.M.

On appeal, D.C. raises the following issues:

I. DYFS FALED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE D.C.'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILD'S BEST INTERESTS.

A. The State Failed to Prove the First Prong Because the Child's Health and Safety is Not Endangered by the Parental Relationship with D.C.

B. The State Failed to Prove the Second Prong that D.C. is Unwilling and Unable to Eliminate the Harm Facing the Child.

C. The State Failed to Prove the Third Prong Because It Failed to Make Reasonable Efforts to Provide D.C. with Appropriate Services.

D. The State Failed to Prove the Third Prong Because the Court Failed to Consider Alternatives to Termination of Parental Rights.

E. The State Failed to Prove the Fourth Prong Because Termination of Parental Rights Would Not do More Harm Than Good.

II. D.C.'S CONSTITUTIONAL RIGHTS OF DUE PROCESS WERE VIOLATED BECAUSE HE WAS NOT TIMELY SERVED, WAS NOT TRANSPORTED TO COURT FOR HEARINGS AND COUNSEL WAS NOT TIMELY APPOINTED.

(I)

As a threshold matter, the scope of appellate review in a termination of parental rights case is limited. "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In the Matter of the Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). The judgment of the trial court "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In the Matter of the Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).

As to the legal standard articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986), DYFS may initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if:

(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.]

"The four criteria are not discrete and separate, but overlap with each other to provide a comprehensive standard to identify a child's best interests." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (2001), certif. denied, 171 N.J. 44 (2002). DYFS bears the burden of establishing each prong of the best interests test by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

(a)

The focus of the first prong of the best interests test is the effect of harms arising from the parent-child relationship over time on the child's health and development. P.P., supra, 180 N.J. at 506; In the Matter of the Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The absence of physical abuse is not conclusive on the issue of harm, since the court must consider psychological and developmental injury to the child as well. In the Matter of the Guardianship of R., G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). Indeed, a parent's withdrawal of solicitude, nurture and care for an extended period of time has been recognized as a harm that endangers the health and development of a child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Further, prolonged inattention to a child's needs, which encourages the development of a bonding relationship to foster parents, the severing of which would cause profound harm, has also been recognized as harmful. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).

On this score, it has been recognized that, while by no means dispositive as a matter of law, "the incarceration of a parent is a relevant factor in determining whether the parent-child relationship may be terminated[,]" because "a parent's incarceration may be a substantial obstacle to achieving permanency, security, and stability in the child's life." In the Matter of Adoption of Children by L.A.S., 134 N.J. 127, 135, 137, 139 (1993). To be sure, the effect of a parent's incarceration on the parent-child relationship is extremely fact sensitive. Id. at 139, 143. By the same token, however, "once a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered." Id. at 139.

This is not a situation where an established parent-child bond was disrupted by the parent's incarceration. Rather, no bond was ever formed between D.C. and D.M. because the father was not available to care for the child and, therefore, there simply was no bond to "preserve" through prison visitation. As the L.A.S. Court observed, a nonexistent parental relationship will not be fostered by the parent's incarceration.

D.C.'s attempt to shift the blame to DYFS for the lack of parental bonding misses the point. Whether or not DYFS provided D.C. with appropriate services, the fact remains that D.C. had been incarcerated for all but three months of D.M.'s young life, and, through his own choices, made himself unavailable to D.M. on a daily basis and unable to support or nurture the child. This extended withdrawal of solicitude and caring harmed D.M. by endangering his development and causing him to bond strongly with his foster parents.

There is also substantial evidence to support the court's conclusion that D.C. failed to make reasonable efforts to bond with D.M. during D.C.'s brief period of non-incarceration. Although DYFS set up a visitation schedule, D.C. only visited D.M. once. The trial judge properly rejected D.C.'s excuses for failing to take advantage of the opportunities presented, finding it significant that D.C. tested positive for cocaine and marijuana on December 15, 2006, and was arrested on drug charges less than one month later. Thus, we are satisfied that the court's conclusion that D.M.'s health, safety and development were harmed by his relationship with D.C. is supported by substantial and credible evidence in the record, N.J.S.A. 30:4C-15.1(a)(1).

(b)

The second prong of the best interests test "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. It may be established by showing that the parent is unable to provide the child with a safe and stable home and that delay in securing permanency will add to the child's harm. Id. at 348-49. Included in the inquiry is "whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'" P.P., supra,, 180 N.J. at 507 (quoting N.J.S.A. 30:4C-15.1(a)(2)).

Here, the undisputed expert testimony of Dr. Katz established that the combination of an antisocial personality disorder, narcissistic personality disorder, ongoing criminal activity, persistent involvement with illegal drugs and personal instability made D.C. unable to parent D.M. now or in the foreseeable future. And as to the latter, we deem it significant that D.C. had only been out of jail for a short time before he committed another crime and was, once again, incarcerated and, moreover, that D.C. had completed drug treatment at Logan Hall just a few months before testing positive for cocaine and marijuana. Indeed, these actions attest to D.C.'s inability to provide D.M. with a stable, nurturing environment in the foreseeable future, which will only cause the emotional and psychological bonds he has formed with his foster parents to strengthen and result in greater harm if they are subsequently severed. Accordingly, the substantial and credible evidence supports the court's conclusion that D.C. is unable or unwilling to overcome the initial harm to D.M., N.J.S.A. 30:4C-15.1(a)(2).

(c)

The third prong of the best interests test requires DYFS to undertake reasonable efforts to reunite the family. K.H.O., supra, 161 N.J. at 354. "That prong of the standard 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 placement of the child into foster care." Ibid. Reasonable attempts at reunification include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

"Like considerations of parental fitness, an evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis." D.M.H., supra, 161 N.J. at 390. Therefore, services such as "day care, housing assistance, referrals to drug treatment or medical and health care, parenting classes, financial assistance, and the like, must be evaluated on a case-by-case basis." Id. at 390-91.

Pertinent here, courts have recognized "'the difficulty and likely futility of providing services to a person in custody.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.) (quoting N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006), certif. denied, 192 N.J. 68 (2007)). Further, courts have noted that DYFS is not obligated to provide parents with services that they are able to obtain independently through state sponsored programs. D.M.H., supra, 161 N.J. at 393.

Nevertheless, DYFS did provide D.C. with a paternity test in May 2006 and a psychological evaluation in August 2007. DYFS also provided a broad range of services to T.M., who was not in prison and was thus available to be a primary care giver for D.M. See D.M.H., supra, 161 N.J. at 393 (holding that it is reasonable for DYFS to focus its efforts of family reunification on the custodial parent). Moreover, upon his release from prison in mid-October 2006, DYFS arranged for D.C. to undergo a psychological assessment and a substance abuse assessment, and set up a regular schedule of visitations between D.C. and D.M. Also, in December 2006, a DYFS caseworker attempted to provide D.C. with a bus card. And in January 2007, DYFS referred D.C. to psychotherapy and parenting skills classes, but he attended neither due to his reincarceration.

Nonetheless, D.C. argues that DYFS did not make reasonable efforts at reunification because it failed to timely ascertain his whereabouts, failed to consider him as a factor in planning for D.M., and failed to promptly provide him with the results of the paternity test. None of this, however, resulted in prejudice to D.C. Because D.C. was incarcerated, he could not

have received custody of D.M. at the January 23, 2006, hearing. The abuse and neglect finding of February 15, 2006, pertained solely to T.M. and made no determination as to D.C.; in any event, D.C. could not have assumed custody of D.M. at that time. D.C. was present at the April 20, 2006, permanency hearing but hesitated when asked to confirm that he was D.M.'s father. Given that paternity had not been established, D.C. could not have been considered as a permanent placement for D.M. in April 2006. Furthermore, when D.C. appeared at the October 4, 2006 hearing, he informed the judge that he wanted to be the plan for D.M., and, at that point, the judge directed DYFS to provide D.C. with services and to investigate the relatives proposed by D.C. as possible placements. Again, on December 15, 2006, the judge directed DYFS to provide him with the opportunity for reunification with his son. Thus, D.C. was given a clear case plan more than a year before the guardianship trial. The fact the case plan proved unsuccessful was likely attributable to D.C.'s reincarceration in January 2007, and not DYFS' lack of diligence prior to October 2006.

Even if DYFS should have provided D.C. with additional services or provided those he did receive in a more timely manner, that fact alone would not be sufficient to disturb the court's finding under the third prong of the best interests test. See F.H., supra, 389 N.J. Super. at 621 (holding that even if DYFS had been deficient in the services offered, reversal would not be warranted because the best interests of the child controls). Here, we are satisfied that the services provided to D.C. both in and out of prison were reasonable under the circumstances.

We are also satisfied that DYFS fulfilled its obligations pursuant to N.J.S.A. 30:4C-12.1(a) and properly assessed the relatives interested in caring for D.M. In each case, the agency completed an assessment of the relatives suggested by D.C. pursuant to Chapter 122C of Title X of the Administrative Code and concluded that neither relative satisfied the requirements of N.J.A.C. 10:122C-4.2.

D.C. does not challenge the correctness of DYFS' assessment or the adequacy of the procedure afforded to D.C.M. and P.P. Rather, his sole contention is that DYFS should have provided these individuals with assistance in procuring suitable housing. Nothing in the record, however, indicates that either individual asked for DYFS' help in finding other housing. Just as significant, there is no legal basis for D.C.'s contention that DYFS is obligated to provide housing for relative placements. Accordingly, we are satisfied, as was the trial judge, that DYFS made reasonable efforts to consider alternatives to termination, N.J.S.A. 30:4C-15.1(a)(3).

(d)

The fourth prong of the best interests of the child test requires a determination that termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). It "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will 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." K.H.O., supra, 161 N.J. at 355. In order to resolve that question, "the court must inquire into the child's relationship with both her biological parents and her foster parents." Ibid.

Ordinarily, termination should not be based exclusively on foster-parent bonding during temporary placement. In the Matter of the Guardianship of J.C., 129 N.J. 1, 19 (1992); N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 432 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992). In order to justify termination on the basis of foster-parent bonding alone, "the child's separation from the foster parents must be shown to threaten serious and enduring emotional or psychological harm." N.J. Div. of Youth & Family Servs. v. B.G.S., supra, 291 N.J. Super. at 593.

Here, in terminating D.C.'s parental rights, the court considered D.M.'s relationship with D.C., which it found to be nonexistent. Indeed, D.C. did not dispute the lack of a relationship with his son. In fact, he even waived a bonding evaluation, conceding that there was no bond. D.C. also did not dispute the fact that D.M. had bonded with his foster parents. D.C.'s sole claim in this regard is that it is DYFS' fault that D.M. has developed a strong relationship with the foster family.

We disagree for obvious reasons.

At the time of the guardianship trial, D.M. had been in the same foster home since his birth twenty-five months earlier. During this time, he had bonded with his foster parents, who wish to adopt him. For all but ten weeks of this time, D.C. had been incarcerated. But even in that brief interim beginning October 2006, when D.M. was only ten months old, D.C. failed to take advantage of the opportunity to develop a relationship with his son. And by the time of the guardianship trial, D.C. was reincarcerated. Thus, if D.C.'s parental rights had not been terminated, D.M. would have been required to stay in foster care for an indeterminate time until D.C. was released from prison and became able to care for him, well beyond the limits on the time for a birth parent to correct conditions in anticipation of reunification. N.J.S.A. 30:4C-15; N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).

This prospect would subject D.M. to unacceptable long-term instability. Conversely, allowing D.M. to receive the permanency, stability and love offered by the foster family with whom he has bonded will, as the evidence amply demonstrates, benefit him and will not do more harm than terminating the parental rights of a biological parent whom he does not know. See N.J.S.A. 30:4C-15.1(a)(4).

(II)

D.C. argues that his constitutional rights to due process have been violated. He contends that DYFS' failure to promptly serve him with the custody and guardianship complaints denied him time to formulate a plan for reunification or to come up with relative resources. Further, he claims that the six-month delay in providing him with counsel denied him the assistance of an advocate who could guide him through the DYFS system. He contends that the failure of the court to transport him to several proceedings, including the April 18, 2007 permanency hearing and the February 15, 2006 fact-finding hearing, denied him the right to be heard at critical and meaningful times in the litigation. We disagree with all these claims.

Because parental rights are fundamental and constitutionally protected, "the court's authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards." N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004). Indeed, "[i]t is well established as a matter of due process principle that procedural requirements are more demanding in parental termination cases than in ordinary civil actions, including other types of cases dealing with parental rights." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).

"The basic indicia of due process are adequate notice and a meaningful opportunity to be heard." A.R.G., supra, 179 N.J. at 286. Due process "is a flexible concept and calls for such procedural protections as the particular situation demands." M.Y.J.P., supra, 360 N.J. Super. at 464; see also H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003) (noting that due process is a flexible concept that depends on the particular circumstances of each case).

In evaluating whether due process requirements have been met in termination proceedings, courts have applied the three-part balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). See, e.g., M.Y.J.P., supra, 360 N.J. Super. at 465-66. Under Mathews, the reviewing court must consider three factors:

(1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require.

[M.Y.J.P., supra, 360 N.J. Super. at 465 (citing Mathews, supra, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33).]

Measured by this test, we discern no due process violation in the proceedings below.

D.C.'s first claim of deprivation is that he was not timely served with notice of the custody complaint; not located and transported to the fact-finding hearing of February 15, 2006; and not assigned counsel for the permanency hearing of April 20, 2006. Although, unquestionably "[t]he fact-finding hearing is a critical element of the abuse and neglect process," as it serves as a "significant and necessary check on DYFS' actions[,]" its "focus centers upon whether the parent under consideration caused injury to the child[.]" N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002) (emphasis added). Here, the parent under consideration was T.M., not D.C. No charges of abuse or neglect were made against D.C., and the court made no findings concerning him. Thus, D.C.'s interest in the hearing was minimal because he did not have custody of D.M., and he could not assert a right to custody or a relative placement until his paternity was established. Further, there was no risk of an erroneous deprivation of his custody of D.M., because he was incarcerated at the time.

The same, of course, may said for D.C.'s absence from the permanency hearing and the delayed appointment of counsel. Simply put, there was no risk that the lack of representation would erroneously deprive D.C. of custody, because he could not assume custody of the child. There was also no risk that it would result in an erroneous permanency plan, because D.C.'s incarceration ruled him out as an immediate placement, and, more importantly, because he could not be considered as a permanent plan for D.M. since paternity had not been established.

But even if the procedures followed in the abuse-or- neglect proceedings were deficient, they, nevertheless, did not impair D.C.'s interests in the guardianship trial. "Abuse-or-neglect and termination proceedings are brought under separate statutory schemes, require different burdens of proof, and allow for different remedies." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 555 (1994). In fact, DYFS may proceed with such actions concurrently. Ibid. Thus, the results of the abuse-or-neglect proceedings could not have denied D.C. a meaningful opportunity to be heard in the guardianship matter.

D.C.'s next claim of deprivation is that DYFS' failure to serve him with the guardianship complaint in a timely manner and the court's failure to appoint counsel prior to October 2006 prevented him from formulating a plan for D.M. Undoubtedly, once D.C.'s paternity was confirmed on May 16, 2006, he was entitled to the services of counsel. N.J.S.A. 9:6-8.43. However, despite several unsuccessful attempts by DYFS to serve D.C. with the guardianship complaint during the summer of 2006, he was not served and did not receive the paperwork to request counsel until the day before the October 4, 2006, hearing.

D.C. appeared at the October 4, 2006, proceeding without having counsel officially appointed, although he was accompanied by an attorney. With the attorney's assistance, D.C. explained that he wanted to be the plan for D.M. and proposed P.P. and D.C.M. as relative resources. Moreover, the attorney had arranged for assessments to be scheduled, advised the court that D.C. would be released from jail in a few days, provided DYFS with the appropriate contact information, and obtained photographs of D.M., which were given to D.C.

We conclude that the failure to give D.C. earlier notice of the guardianship complaint and access to counsel did not infringe on his right to due process. Although D.C.'s interest in the proceedings was significant and fundamental, there was little risk that the procedures that were used resulted in the erroneous deprivation of parental rights, and additional procedures would likely have been of no value. After all, the proceeding on October 4, 2006, was fundamentally fair. D.C. received competent representation, and the court made no ruling that was contrary to his interests. Indeed, the court ordered DYFS to provide D.C. with services and visitation, and to consider D.C. as a possible plan for D.M. It also provided D.C. with guidance as to how to gain custody of D.M. by telling him that he would have to follow the recommendations of the psychological and substance abuse assessments.

It is not clear how having access to an attorney for a longer period of time prior to the hearing would have made a difference. As noted, even with the assistance of counsel, D.C. would not have been able to request custody of D.M. on October 4, because he was still incarcerated. Likewise, although D.C. might have had more time to formulate a reunification plan, he never suggested a plan that differed from the one set forth at the hearing.

Most importantly, D.C. had sixteen months between the service of the guardianship complaint and the trial to remedy the deficiencies that led to D.M.'s placement in foster care. During this time, he could have suggested relative placements, formulated alternate reunification plans, obtained stable housing and employment, and developed a relationship with D.M. His failure to do so may not reasonably be attributable to any delay in serving him with notice of the complaint. Under the circumstances, any lack of diligence in serving D.C. with notice of the guardianship complaint and in appointing counsel prior to the October 4, 2006 hearing did not violate his right to due process of law.

Finally, D.C. complains of his absence from a number of hearings in 2007, namely the case management conferences of April 18, 2007, August 8, 2007, and November 14, 2007. Admittedly, the April 18, 2007 hearing resulted in a permanency order erroneously stating that reasonable efforts to reunify were not required, because there had been previous terminations of parental rights for both parents. However, this error had no

effect on the guardianship trial. DYFS presented no evidence that D.C. had been the subject of a previous termination order and the DYFS caseworker testified that DYFS did not know whether D.C. had any other children. In reaching its decision, the court made no mention of any history between D.C. and DYFS. The error in the April 18, 2007 order also did not effect D.C.'s interests by denying him services that might have facilitated reunification. As previously discussed, DYFS was not obligated to provide D.C. with services while he was incarcerated. Because D.C. remained in custody for the entire time between April 2007 and trial, any mistake in the order was clearly harmless.

Similarly, D.C.'s absence from the conferences on August 8, 2007, and November 14, 2007, had no impact on his interests in the guardianship trial. The August hearing simply ascertained the status of the psychological evaluations and allowed the court to sign orders to facilitate D.C.'s evaluation. The November hearing was a pre-trial conference that was significantly curtailed when the judge ascertained that D.C. had not been transported to the court. Although the attorneys discussed evidential issues and exchanged expert reports, the judge made no rulings and issued no orders. We do not perceive how D.C.'s attendance would have made a difference in either of these proceedings.

In sum, we conclude that D.C. suffered no due process deprivation. We are aware of no constitutional mandate requiring an incarcerated parent's presence at every intermediary case management conference in advance of a guardianship trial. See M.Y.J.P., supra, 360 N.J. Super. at 467-68. Suffice it to say, here, D.C. was effectively represented by counsel throughout and received a fair trial at which, we are satisfied, clear and convincing evidence established all the elements of N.J.S.A. 30:4C-15.1(a).

 
Affirmed.

The biological mother, T.M., did not appear at the guardianship trial and does not appeal from the judgment of termination.

T.M. was not present and the judge entered an order of default against her.

At the close of the December 15, 2006, hearing, a DYFS caseworker told D.C. that he could wait in the waiting room or come back later to get his bus tickets. D.C. said he was not feeling well and left. He never returned or phoned concerning the bus tickets.

At the conference, it was erroneously represented that a "No Reasonable Efforts" order had been signed for both T.M. and D.C., when, in fact, the order only pertained to T.M. This confusion was reflected in the judge's subsequent April 18, 2007 permanency order, which stated that reasonable efforts to reunify were not required due to "prior TPR [termination of parental rights] for both parents."

D.C.'s mother was also ruled out as a placement because a home visit by a DYFS worker in October 2006 revealed that she was living in a one-room hotel room with two other adults. Both the aunt and the mother received rule-out letters advising them of their right to appeal DYFS' determination, but neither of them did.

Although N.J.A.C. 10:133I-4.2(c) sets forth guidelines for diligent efforts, Chapter 133I of Title X of the Administrative Code expired on January 17, 2006, and has not been readopted. Hence, DYFS has no present regulations addressing what efforts are "reasonable" in effectuating reunification.

During his incarceration, D.C. received drug rehabilitation services at Logan Hall prior to his release in October 2006. Thus, there was no need for DYFS to provide him with assistance in this area. See generally, Beatrix W. Shear, Incarcerated Parents and the New Jersey Child Welfare System, 29 Women's Rights L. Rep. 23, 28-29 (2007).

(continued)

(continued)

33

A-3665-07T4

RECORD IMPOUNDED

May 13, 2009