New Jersey Division of Youth and Family Services v. A.V.

(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NOT FOR PUBLICATION WITHOUT THE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-4894-07T44894-07T4

New Jersey Division of Youth

and Family Services,

Plaintiff-Respondent,

v.

A.V.

Defendant-Appellant.

In the matter of the guardianship

of V.V., a minor.

 

 

Submitted May 20, 2009 - Decided

Before Judges Parrillo, Messano and Kestin.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-28-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent DYFS (Lewis Scheindlin, Assistant Attorney General, of counsel and on the brief; Mary A. Hurley, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent minor V.V. (Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this parental termination case, defendant A.V., the biological father, appeals from a judgment of guardianship terminating his parental rights to his four-and-one-half year old daughter, V.V. 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 V.V. We disagree and affirm for the following reasons.

V.V. was born July 22, 2004. M.R., at the time, had five other children by two different men, while A.V. (defendant or A.V.) had six other children by three different women. V.V. is the only child between M.R. and defendant. The couple resided together in Lancaster County, Pennsylvania, until May 2004, two months prior to V.V.'s birth, when a pregnant M.R. moved to Camden, New Jersey. Defendant has continued to reside in Lancaster County.

DYFS' contact with the family began later that year on October 26, 2004, when it investigated a referral from Lancaster County Children and Youth Services (CYS) concerning possible sexual abuse of M.R.'s oldest child, then fourteen, by defendant. Both M.R. and the child denied the abuse, and DYFS continued to monitor the family through June 17, 2005. From Camden, M.R. moved to a shelter for two months before moving to a more stable home.

DYFS received a second referral on August 21, 2005, based on allegations that M.R. regularly neglected her children, which, in one instance, resulted in one of her children, age 4, being found alone in a store wearing only shorts, and in another, leaving the children without food. Having observed the deplorable condition of M.R.'s home, and, in particular, V.V.'s severe diaper rash which required prescription medication, DYFS caseworkers removed the children and placed them in foster care pursuant to DYFS' emergency removal powers under N.J.S.A. 9:6-8.29 and 8.30.

Two days later, on August 23, 2005, DYFS filed a verified complaint seeking custody of M.R.'s children. Defendant attended the order to show cause hearing of the same date after being notified of DYFS' involvement by M.R. At the conclusion of the hearing, the Family Part judge ordered that DYFS expedite an evaluation of defendant's home via the Interstate Compact for the Placement of Children (ICPC). On September 13, 2005, the court awarded DYFS custody of M.R.'s children, including V.V. A month later, on October 25, 2005, the judge further ordered that, if the interstate evaluation was favorable, V.V. would be placed with defendant.

Defendant visited V.V. in her foster home on September 23 and October 7, 2005, but did not visit her again for another ten months until July 28 and August 17, 2006, during which time he also did not attend a scheduled February 27, 2006 compliance review. Meanwhile, on January 17, 2006, Lancaster County CYS conducted an interstate evaluation of defendant's household on behalf of DYFS pursuant to the ICPC. CYS concluded that defendant was "not a viable option for his daughter" after the study revealed that defendant had not worked in ten years and that he supported six other individuals on only disability and food stamps. The study also revealed that defendant had a documented history of domestic complaints filed against him with CYS, including two involving his teenage daughter; a criminal record, including incarceration, for stealing at age eighteen; and that he was then on probation for fighting in public after a woman accused him of "slashing her in the face." In addition, his sixteen-year-old daughter had recently been arrested for assault for cutting a person's face with a knife, and was incarcerated until February 16, 2006, when she was released on house arrest. Defendant had no further contact with CYS following the Home Study, and apparently, failed to submit clearance forms required to complete the study. On April 14, 2006, the Pennsylvania Department of Public Welfare communicated CYS' findings to DYFS, concluding that the "Placement shall not be made" pursuant to Article III(d) of ICPC. Only three months later, however, defendant effectively became DYFS' primary candidate for reunification when, on July 8, 2006, M.R. was arrested for killing her boyfriend and, consequently, her parental rights were summarily suspended.

Meanwhile, V.V. was placed in a series of foster homes, the first three occurring on the three days immediately following her removal. On July 19, 2006, V.V. was placed in her sixth foster home, this one specialized, as a result of being diagnosed as underweight and for meeting the criteria for "failure to thrive" in light of apparent language delays. V.V. remained in this specialized home until May 14, 2007, when she was placed with her current foster parents, her seventh placement.

On August 29, 2006, the defendant was granted weekly visitation, yet visited his daughter only four times through October 2006. Then, from November 2, 2006 to July 26, 2007, defendant visited his daughter only seven times out of thirty-seven scheduled visitations, two of which were for bonding evaluations. After DYFS and defendant worked out a new bi-weekly visitation plan for the period covering August to December 2007, A.V.'s visitation remained sporadic. A.V. visited his daughter on September 13 and 27, 2007, but missed nine other scheduled visitations. Thus, from M.R.'s arrest for murder in July 2006, defendant has visited V.V. only about twelve times. Specifically, over a one-year period, between November 2006 and December 2007, which includes during time of trial, defendant visited V.V. only nine times out of forty-eight scheduled visits.

Due to the irregularity of defendant's visits, V.V. was noticeably hesitant when defendant came to see her on July 12 and September 13, 2007. On the latter visit, V.V. stated "her pull up was wet," and when defendant was asked "if he was going to change her, [defendant] stated no because he did not feel comfortable changing her." Also, on March 27, 2007, defendant was informed that DYFS had arranged parenting classes, at no cost to him, as ordered by the court, and was directed to contact Colby Family Services to participate in the program. Defendant, however, never did so, and never participated in parenting classes.

In his June 27, 2007 evaluation of defendant, Dr. James Loving noted several areas of potential risk left unresolved by defendant's "evasive style of answering questions," and apparent "concealing [of] information." His first concern involved defendant's potential for violence, given that defendant was on probation for "slashing" a woman's face during an altercation at a club and had been investigated by child services for treating his teenage daughter in an overly harsh manner. Another concern was defendant's risk for criminal involvement in light of "multiple incidents that have been noted in the records but, which he either denied or downplayed." Yet another concern involved defendant's "risk for allowing his children to be exposed to [the] high-risk behavior of other family members." When asked about the delinquency history of his teenage daughter, defendant denied "any family legal history" but "then acknowledged his daughter's arrest" and "dismissed the incident as 'kids being kids.'"

In recommending against reunification, Dr. Loving noted that defendant had a "limited understanding of [V.V.'s] emotional needs," and failed to appreciate the "burdens of caring for three children aged three and under," even categorically denying the possibility of any transitional difficulties. While defendant appeared to have genuine concern for V.V., Dr. Loving found it highly suspect that A.V. allowed his daughter to remain with her mother, when he himself supposedly ended his relationship with M.R. because of her drug abuse. Dr. Loving also reported that defendant "has failed to comply fully with steps toward reunification, even when those are available to him locally," "failed to fully cooperate with the [home] evaluation process," and has also failed to complete parenting skills training as ordered by DYFS because "he feels he does not need help with his parenting."

Dr. Loving also conducted a bonding evaluation between defendant and V.V. on June 27, 2007. He concluded that V.V. does not have strong signs of attachment with defendant, or for that matter any adults, but that V.V. "shows signs of attachment" to her foster parents. Dr. Loving also concluded that it was critical for V.V. to have permanency in her life and that another relocation would expose her to additional risk of emotional harm. In his opinion, V.V.'s "best available option . . . would be to allow her to remain in her current home and proceed to adoption" by her current foster parents.

Dr. David Bogacki also evaluated defendant but certain of his findings - namely that defendant had "no adult criminal history," "has visits with the child twice per month," and does "not use corporal punishment" - are contradicted by evidence in the record. In any event, Dr. Bogacki also conducted a bonding evaluation between V.V. and defendant, and although he found that "[t]here is a foundation for the development of a stronger degree of emotional attachment given increased time with the child," he nevertheless concluded, as did Dr. Loving, that "[c]urrently there is not a secure emotional attachment" to defendant and that "[i]f parental rights were terminated the child would likely not suffer from any degree of emotional harm." He also agreed with Dr. Loving that V.V. needs permanency.

At the close of evidence, the judge determined that DYFS had satisfied the four-pronged test of N.J.S.A. 30:4C-15.1a by clear and convincing evidence, finding that terminating defendant's parental rights was in the best interests of V.V. As to the first and second prongs, the court found that, from the time of V.V.'s birth to time of trial, defendant had continually harmed V.V. by his lack of parenting, including his failure to maintain a relationship with her despite knowing that her mother was a drug addict; his infrequent visits to V.V. after placement; his inaction in all other areas of the reunification process, including his apparent willingness to allow V.V. to return to M.R. after the initial removal before M.R.'s arrest for murder, despite, again, knowing of her drug use; and his failure to appreciate the transition needed to ease V.V. into his care, which no doubt explains why he never submitted plans for reunification. Citing defendant's financial situation - supporting six other individuals without a job and only disability and food stamps as income - and his failure to appreciate the gravity of his teenage daughter's delinquency, the judge concluded that defendant could not provide a safe and stable home.

As to the third prong, the court found significant the fact that defendant consistently failed to participate in court hearings, visited his daughter sporadically, and was largely uncooperative in the reunification process. As to the fourth prong, the court noted that DYFS' and defendant's experts both agreed that terminating defendant's parental rights would not harm V.V. because she did not have a strong attachment to defendant. By contrast, Dr. Loving found V.V. showed signs of attachment to her foster parents. Given the opinion of both experts that V.V. needed permanency, the court concluded that terminating defendant's parental rights would not do more harm than good.

This appeal follows.

In balancing parental rights against the State's interest in the welfare of children, we place a heavy burden on the State to show that termination of parental rights is in the best interests of the child, which is achieved through the "best interests" standard. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). That standard provides that parental rights may be terminated upon a showing, by clear and convincing evidence, In re Guardianship of J.C., 129 N.J. 1, 10 (1992), 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;

(4) Termination of parental rights will not do more harm than good.

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

These four factors are not "discrete," but rather "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.

Appellate review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings. Ibid.

Governed by this standard, we are satisfied that the trial judge properly concluded that DYFS established by clear and convincing evidence all four prongs of the "best interests" test. We therefore affirm substantially for the reasons stated by Judge Mary White in her comprehensive written decision of April 14, 2008. We add only the following comments.

With respect to the first and second elements of the best interests standard, N.J.S.A. 30:4C-15.1a(1) and (2), the alleged injury need not be physical. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." Ibid. Here, defendant failed to perform the normal functions of a parent in visiting his daughter, and was unwilling to pursue the reunification process offered by the State. He visited V.V. only nine times out of forty-eight scheduled visits between November 2006 and December 2007, and tellingly, did not visit her for a ten month period beginning just two months after the State removed V.V. from her mother's home. Meanwhile, V.V., an emotionally fragile child, was cycled through a succession of foster homes. Nothing in the record contradicts the likelihood of this neglect continuing if defendant were to obtain custody. See J.C., supra, 129 N.J. at 10. In any event, both the State's and defendant's experts observed that V.V. suffers from an emotional detachment to all adults based on her placement in seven foster homes in two years, which is clear evidence that defendant's delay in and of itself has caused her psychological harm. See K.L.F., supra, 129 N.J. at 44.

Furthermore, the fact that defendant lives with six other individuals, has been unemployed for ten years, survives financially on disability and food stamps, is on probation, and has been reported to social services for his alleged harsh treatment of his teenage daughter, who herself is a juvenile delinquent, raises serious doubts as to whether he can provide a safe and nurturing environment for V.V. Moreover, once M.R. was summarily terminated as a candidate for reunification after her arrest for murder, defendant made little effort to nurture V.V., to provide her with a stable and loving home, and to otherwise actively participate in transitional reunification. His ability to do so was questioned by Dr. Loving, who observed that defendant failed to appreciate V.V.'s needs. Accordingly, there was sufficient support for the trial judge's determination that defendant not only endangered V.V's "health [and] development," but also was "unable to eliminate the harm facing the child," and thus "unable or unwilling to provide a safe and stable home." N.J.S.A. 30:4C-15.1a(1) and (2); see K.H.O., supra, 161 N.J. at 353-54.

The third element of the best interests standard requires DYFS to undertake diligent efforts to reunite the family. N.J.S.A. 30:4C-15.1a(3). This prong contemplates efforts that focus on reunification and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care. K.H.O., supra, 161 N.J. at 354. In this context, DYFS supported reunification by requesting and receiving an interstate evaluation of defendant's home, encouraged continued parental visits, arranged for defendant to take parenting classes, recommended that defendant first focus on the behavior of his teenage daughter before taking custody of V.V., and kept defendant informed of the child's progress in foster care. To the extent defendant argues that DYFS did not do any "diligent" assessments of its own, DYFS did not rely solely on the findings of CYS via the ICPC, but also on defendant's own inaction and unwillingness, which are relevant factors when determining whether DYFS complied with the diligent efforts requirement. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). As noted already, defendant rarely visited his daughter; he refused to submit to parenting training and background checks to further the reunification process; and at no point in the reunification process or at time of trial did he propose any transitional plan to ease V.V. into his care.

Furthermore, contrary to defendant's other argument, the ICPC does not preclude DYFS from refusing out-of-state placement to a natural parent. To the extent that we held in N.J. Div. of Youth and Family Servs. v. K.F., 353 N.J. Super. 623 (App. Div. 2002) that a placement to a natural parent is exempt from the ICPC, our holding was premised on the "nonsensical" application of the ICPC "to prohibit a court's placement of children with their natural family solely because the family resides in another state." Id. at 635. Indeed, "[t]he ICPC was intended to remove, not to create, obstacles to out-of-state placements that are in the best interests of children." Id. at 635. The facts here are thus distinguishable because DYFS' refusal to place V.V. with defendant is not based on his out-of-state residence and in no way creates an obstacle to placement that contravenes the best interests of the child. As for placement with other relatives, suffice it to say, V.V.'s mother is incarcerated, her grandmother lives with defendant, and defendant never voluntarily proposed to DYFS any other relatives. Accordingly, there was sufficient evidence supporting the judge's determination that DYFS undertook sufficient reunification efforts. N.J.S.A. 30:4C-15.1a(3).

The fourth element of the best interests standard requires a determination that terminating parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1a(4). This element, however, does not require a showing that no harm will befall a child as a result of severing biological ties because, obviously, "[t]he risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights[.]" J.C., supra, 129 N.J. at 26. Rather, the proper inquiry 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. J.N.H., supra, 172 N.J. at 478. Here, both the State's and defendant's experts found that V.V.'s primary bond is with her foster parents, that V.V. has a much weaker, secondary bond with defendant, and that V.V. would not suffer emotional harm from terminating defendant's parental rights. Here again, there was sufficient support for the judge's determination that terminating parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1a(4).

 
In sum, in recognition of New Jersey's strong public policy in favor of permanency and stability in guardianship cases, J.C., supra, 129 N.J. at 26, we conclude that the termination of parental rights here is supported by clear and convincing evidence.

Affirmed.

The biological mother, M.R., voluntarily surrendered her parental rights to V.V. on August 17, 2007. M.R. did not appear at the guardianship trial and does not appeal from the judgment of termination.

These individuals include defendant's girlfriend, F.N., who was also unemployed; their two infant children; his mother; his sixteen-year-old daughter; and his fourteen-year-old cousin.

In 1998, defendant's daughter's school informed social services that she needed eyeglasses, and following the involvement of social services, defendant purchased eyeglasses. Then, in September 2005, defendant's daughter, accompanied by his ex-girlfriend, complained of her father's physical punishment. According to the Lancaster County caseworker who performed the Home Study, A.V. "did not deny using physical punishment to enforce his rules."

As noted, on August 17, 2007, prior to litigation in this matter, M.R. executed a knowing and voluntary surrender of her parental rights in respect of V.V.

At trial, Dr. Bogacki qualified this statement, noting that he could not give an "opinion to a degree of reasonable psychological certainty as to whether the child would suffer from enduring emotional harm if . . . the child was no longer with the current foster parents."

(continued)

(continued)

17

A-4894-07T4

RECORD IMPOUNDED

June 23, 2009