NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.P. and D.T.

(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NOT FOR PUBLICATION WITHOUT THE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-3666-07T43666-07T4

A-3783-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.P. and D.T.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

V.J.G.,

Minor.

_________________________________

 

Submitted May 26, 2009 - Decided

Before Judges Lisa and Reisner.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-64-08.

Yvonne Smith Segars, Public Defender, attorney for appellants (Deric Wu, and Durrell W. Ciccia, Designated Counsels, on the brief).

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

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

PER CURIAM

D.P. and D.T. appeal from a Family Part order dated February 15, 2008, terminating their parental rights to their child, V.J.G. On these appeals, which we have consolidated for purposes of this opinion, they argue that the State failed to establish that termination was in the child's best interests, under the standards set forth in N.J.S.A. 30:4C-15.1a. Having reviewed the record, we reject their appellate contentions and affirm.

I

V.J.G. was born on September 29, 2005. The child was removed from his mother, D.T., at birth and placed with a relative, W.G., after D.T. and the child both tested positive for opiates. However, the child was placed in a foster home in July 2006, after the Division of Youth and Family Services (DYFS or Division) found that W.G. was neglecting him and that another child in W.G.'s care had been sexually molested. V.J.G. was eventually placed with his current foster family.

Through the undisputed expert testimony of Dr. Frank J. Schwoeri, a clinical psychologist, DYFS produced evidence that the child has not bonded with either of his biological parents. Dr. Schwoeri also testified that the child has bonded with his current foster parents and would suffer "significant and enduring harm" if separated from them. In that context, Schwoeri explained the severe danger to the child of developing problems related to "attachment disorder" as a result of repeated changes in placement. The foster parents wish to adopt the child.

There is no dispute that D.T. has spent very little time with the child since he was removed from her custody. Both at trial and in her interview with Dr. Schwoeri, she claimed that she never intended to keep the child but was acting as a "surrogate" for her relative, W.G., who wanted a child. That was her explanation for refusing to visit with the child for the nine months he was living with W.G. and thereafter.

DYFS caseworker Olukayode Badru confirmed that D.T. has never visited with her son since he has been in DYFS custody. Moreover, the agency offered D.T. psychological counseling and substance abuse evaluations, but she did not cooperate with those services. Badru also testified that the agency attempted to find other relative placements for the child but was unsuccessful.

Dr. Schwoeri evaluated D.T. as having a marginal intelligence level, being "hyper-vigilant," and having a paranoid personality disorder. He opined that these conditions would impair her parenting ability. He also found her to be ambivalent about whether she really wanted custody of V.J.G.: "One day she wants him, another day she doesn't." He expressed concern that if given custody of V.J.G., D.T. might "simply give up on him again" as soon as she encountered any difficulty in dealing with him. Schwoeri also noted concern about her past use of opiate drugs.

In testimony that was somewhat rambling, D.T. explained that if W.G. could not care for her son, she wanted to care for him. She acknowledged V.J.G.'s bond with his foster family, but felt that this could never be the same as living with his biological family. Her plan if given custody was to marry D.P. and live with him and her son.

The child's father, D.P., has been in prison for most of the child's life, although he was not in prison and was participating in a drug court program at the time of the guardianship trial. He has a continuing drug problem and has significant mental health issues. Dr. Schwoeri evaluated D.P. "at the visitation room of the courthouse where [he was then] incarcerated in the jail." D.P. told Schwoeri about his multiple arrests and incarcerations for selling crack cocaine. D.P. also acknowledged his drug and alcohol problems, and his history of depression and a bipolar disorder, which was consistent with Schwoeri's diagnosis.

Dr. Schwoeri opined that D.P. was at high risk to relapse into drug use when released from prison. Further, he would not be able to parent a child without therapy for his psychiatric problems. It would take a least a year of therapy before D.P. could even be considered as a possible parent for V.J.G. Further, D.P.'s risk of drug relapse, and the risk of re-incarceration, would pose danger to V.J.G. It would be "highly damaging" to the child to be placed with his father, only to be moved again.

D.P. told Schwoeri that he has had no relationship with his son. D.P. never tried to visit the child, even when he was out of prison and the child was living with W.G. D.P. told Schwoeri that he felt the child was in good hands with W.G. and there was "no need" for him to visit his son. According to DYFS caseworker Badru, even when D.P. was released from prison he never asked DYFS to arrange for visitation with his son. D.P. was most recently released from prison in December 2007, a few weeks before the guardianship trial began. Badru explained that while D.P. was in prison, DYFS could not have provided him with reunification or other services.

According to D.P.'s testimony, he was in jail when D.T. was pregnant with V.J.G. He found out that the child was his son at some point prior to September 2007, when he began his most recent period of incarceration prior to the trial. He claimed that he had written DYFS a letter asking for pictures of his son, but contended that he was never offered visitation. He testified that he was currently "involved with" with D.T., had a close relationship with her other children, and wanted to be a father to V.J.G.

In his testimony, D.P. denied having a drug problem, although he claimed he was addicted to selling drugs. He testified that, but for the requirements of the drug court, he would not be going to a drug rehabilitation program. While he was not incarcerated at the time of the trial, there appears no dispute that D.P. is currently in prison, having failed in the drug court program.

In a comprehensive oral opinion placed on the record on February 15, 2008, Judge Melendez concluded that DYFS had satisfied all four prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1a. She found that D.T. was not a credible witness and that D.T. had repeatedly expressed a lack of interest in visiting with V.J.G. She also credited Dr. Schwoeri's testimony concerning D.T.'s and D.P.'s psychiatric and drug problems. Additionally, she considered D.P.'s long history of incarceration, making him unavailable to act as a parent.

The judge found that both parents had "failed to make themselves available for their children" as a result of which "a bond has been allowed to form between that child and his foster parent." She further found that neither D.T. nor D.P. was currently able to serve as a parent for V.J.G. Nor were they likely to become fit parents in the foreseeable future. Meanwhile, she found that the child had bonded with his foster mother and would suffer significant and enduring harm if he were removed from her. The judge found that DYFS had made reasonable efforts to provide services under the circumstances, given D.P.'s incarceration and D.T.'s lack of cooperation. She concluded that the child's need for permanency was paramount and that termination was in his best interests.

II

On this appeal, D.P. raises the following points for our consideration:

POINT I: D.P.'S PARENTAL RIGHTS TO HIS SON SHOULD NOT BE TERMINATED BECAUSE THE EVIDENCE SUBMITTED AT TRIAL DID NOT SUPPORT A LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE STATUTORY TEST FOR TERMINATION OF PARENTAL RIGHTS WERE MET.

A. Each Prong of the N.J.S.A. 30:4C:15.1a Test Must Be Met Before a Father's Rights to His Son May Be Terminated By the State.

B. The Facts Presented at Trial Do Not Support a Legal Conclusion That Prong One of N.J.S.A. 30:4C-15.1a Was Met.

C. The Trial Record Shows That the Division Did Not Clearly and Convincingly Prove Prong Two of N.J.S.A. 30:4C-15.1a.

D. The Trial Record Shows That the Division Did Not Provide Reasonable Efforts Toward Unifying D.P. With His Son.

E. The Division has Clearly Not Proven that Prong Four of N.J.S.A. 30:4C-15.1a, That Termination Will Not Do More Harm than Good, Has Been Met.

D.T. presents the following issues:

POINT I: THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILD WILL BE SERVED BY TERMINATION D.T.'S PARENTAL RIGHTS.

A. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE, THAT V.J.G.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY HIS RELATIONSHIP WITH HIS MOTHER.

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT D.T. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILD.

C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT 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.

D. TERMINATION OF D.T.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,'" and so long as "they are 'supported by adequate, substantial and credible evidence.'" In re 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)). Special deference is owed to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Manalapan Realty v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Guardianship actions implicate a constitutional right to parental autonomy, recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102. In striking a balance between these competing considerations, courts must act in the "best interests of the child." N.J.S.A. 30:4C-15(c).

D.P. and D.T. claim that the Division failed to meet its burden of proof under the four-part guardianship inquiry articulated in Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

 
(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.

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not discreet and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

D.P. particularly emphasizes that DYFS fell short of its obligation to provide him with reunification services. We disagree. In In re Adoption of Children by L.A.S., 134 N.J. 127 (1993), the Supreme Court held that a parent's incarceration, while it is "unquestionably relevant" to the termination decision, does not automatically justify termination of parental rights. Id. at 136-37. Rather, the court must consider a host of relevant factors:

[A] parent's lengthy incarceration is a material factor that bears on whether parental rights should be terminated. Incarceration may be such a factor based on either abandonment or parental unfitness. Further, we conclude that the nature of the underlying crime giving rise to incarceration is relevant in determining whether parental rights should be terminated, because it may bear on parental unfitness. We also determine that the hearing to decide whether parental rights should be terminated must be based on a broad inquiry into all the circumstances bearing on incarceration and criminality, and must include an assessment of their significance in relation to abandonment or parental unfitness.

[Id. at 143.]

Following L.A.S., we have recognized that

"[i]mprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions.'" . . . It also may serve to frustrate nurturing and the development of emotional bonds and as a "substantial obstacle to achieving permanency, security, and stability in the child's life." Additionally, the nature of the crime causing the incarceration bears upon the issue of parental fitness and the potential for rehabilitation. The length of the custodial term is likewise an important consideration.

[Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006) (citations omitted).]

Unlike the incarcerated parent in S.A., supra, D.P. has been in prison for most of the child's life and therefore has not been in a position to develop a relationship with his son. D.P. also made no effort to see the child when he could have visited his son at W.G.'s house. Instead, as he told Dr. Schwoeri, he did not visit the child because there was "no need" to do so. Further, it is clear that even after he is released from his current incarceration, D.P. will not be in a position to take on the responsibility of a custodial parent. Meanwhile, his son is entitled to a stable and permanent home with a loving family.

The evidence also strongly supports the conclusion that D.T. essentially abandoned her son for much of his life, and continues to be unable to serve as a parent. The child has bonded with his foster mother and would suffer serious harm if removed from her care. The judge's decision to terminate defendants' parental rights was supported by substantial credible evidence and was consistent with applicable law. R. 2:11-3(e)(1)(A).

 
Affirmed.

(continued)

(continued)

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A-3666-07T4

RECORD IMPOUNDED

June 9, 2009