DIVISION OF YOUTH AND FAMILY SERVICES v. A.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5651-07T45651-07T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.J.

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF L.T., a minor.

______________________________

 

Submitted March 24, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-21-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Louis Benjamin Allen, Deputy Attorney General, on the brief).

PER CURIAM

Defendant A.J. appeals from the May 13, 2008 order of the Family Part terminating his parental rights to L.T. and awarding guardianship of the child to the Division of Youth and Family Services (DYFS). For the reasons that follow, we affirm.

L.T. was born to S.G. on August 22, 2006. At the time of L.T's birth, defendant had not been identified as her natural father. Defendant was incarcerated in state prison as of July 21, 2006, and had a projected release date of October 2008 at the time of trial. He first learned that he was L.T.'s father from the results of a paternity test administered in September 2007.

L.T. was removed from S.G.'s custody on January 3, 2007. In July 2007, L.T. was placed with foster parents who also had custody of her half-brother, Z.G.

Trial on DYFS's complaint for guardianship of L.T. was held on April 2, 2008. S.G. did not appear at trial. Defendant was brought to trial from custody; as of that date, defendant had never seen L.T.

DYFS caseworker Megan Clemente testified that S.G. initially misidentified another man as L.T.'s biological father. It was not until June 11, 2007, that S.G. identified defendant as the biological father. DYFS thereupon arranged to have a paternity test administered to defendant in state prison and, as noted, he was positively identified as L.T.'s biological father in September 2007. On September 18, 2007, DYFS filed an amended guardianship complaint naming A.J. as a defendant.

Clemente testified that, because defendant was incarcerated, DYFS offered him no reunification services; however, DYFS did arrange for Dr. Alan Lee, Psy. D., to conduct a psychological evaluation of defendant on March 7, 2008.

Defendant's attorney objected to Dr. Lee's testimony at trial because she had just received a copy of the doctor's evaluation. The trial judge ruled:

Okay. I'm going to allow Dr. Lee to testify and then, after he testifies, if you [counsel for A.J.] would still like to speak to a therapist and have [him/her] look at it to assist you with it, then I will allow you the time.

Dr. Lee testified that, although he found no evidence of mental illness, personality disorder or cognitive deficiency in defendant, he nonetheless opined that defendant should not be considered as a caregiver for L.T. Dr. Lee stated:

In general, [defendant], who, at the time, was a 36-year-old, unmarried birth father of . . . [L.T.], had revealed a fairly lengthy history of child and adolescent behavioral problems and a fairly extensive adult criminal history. He described some significant periods of illicit drug usage including marijuana and cocaine.

He largely denied any kind of prominent mental health problems per se. For example, there did not appear to be evidence of severe depression or any kind of schizophrenic condition. However, the evaluation did reflect and note him to have a number of rather ingrained and pervasive maladaptive personality character traits that seem to contribute to his difficulties sustaining himself in the community.

He had described [a] fairly significant adult criminal history with at least three periods of being incarcerated. Some of these [were] for fairly protracted periods of time, such as from 1992 to 1998, again from 2000 to 2004, and then, most recently and related to the instant offense, from April 2006 to the time that I had evaluated him.

In short[,] and in synthesizing and integrating the information available related to the issue of parenting and caretaking, I did not support [defendant] being an independent care giver. As would be obvious at the time of the evaluation, he was incarcerated, which would certainly compromise his ability to independently care for a child, obviously, in prison. However, I would also offer that, even if he was not incarcerated, many of these presenting problems, the history of substance abuse, criminal issues, criminal recidivism and general life irresponsibility did not support him to be an independent care giver to a minor child.

Defendant's attorney briefly cross-examined Dr. Lee. She did not, however, request time to retain an expert to conduct an evaluation on behalf of defendant, as the judge had offered.

L.T.'s current foster home placement was described by Clemente as follows:

There's the foster mother, [L.T.]'s biological brother, [Z.G.], as well as two other foster children who are very close in age to [L.T.]. She goes to day care. She's up to date on her immunizations. Her day care and her pediatrician do not have any concerns about the care she receives.

Her day care calls her Smiley 'cause they say she's always happy and smiling. . . . She's doing very well. . . . [S]he went there . . . before she turned one. So, she wasn't talking or walking. But now, . . . she's up running around, talking. She can almost have a conversation with you. She's a very happy little girl.

Clemente stated that DYFS had no "concerns regarding this foster placement[.]"

Defendant offered his mother as a caretaker for L.T., adding that he intended to live with his mother upon his release from custody. Clemente testified that DYFS offered the paternal grandmother visitation with L.T. but, after attending one visit, she had no further contact with DYFS. Although DYFS never sent the grandmother a formal "rule-out" letter, Clemente testified that DYFS did send her a letter suspending her visitation rights with L.T., and that the grandmother never appealed from that suspension.

Defendant testified that he had spoken to his mother about his proposed caretaking arrangement. Defendant stated:

I'm saying as far as my family hav[ing] custody, my mother hav[ing] custody of [L.T.] until I'm out there doing what I've got to do and working and providing for myself and going through certain steps and certain programs to help my daughter and help myself at the same time to be a father to her. Then I would want custody of her.

When asked if he disagreed with Clemente's testimony about his mother's visitation with L.T., defendant responded: "I don't even talk to my mother. I don't get visits. . . . So, I don't even know." Notwithstanding this lack of contact with his mother, defendant asserted that she was "with [him] a hundred percent[,]" as to his "plan for regaining custody of [L.T.]"

On May 13, 2008, Judge June Strelecki rendered a decision from the bench terminating the parental rights of S.G. and defendant. After reviewing and analyzing the evidence, the judge concluded that clear and convincing evidence supported termination of both parents' rights, and that DYFS had satisfied the four statutory prerequisites for termination of such rights set forth in N.J.S.A. 30:4C-15.1(a)(1) to (4).

The judge made the following findings regarding defendant:

He has never personally met the child and the child has never resided with him. He has been incarcerated for sizable portions of his adult life, including all of the time since [L.T.]'s birth. [L.T.] has been in foster [care] for a number of months. [Defendant] currently remains incarcerated and reported his anticipated or projected release date around October 2008.

While he has participated in some programs while incarcerated, he has had a significant history of juvenile behavior, attitude problems and delinquency[,] as well as recurring adult criminal charges and incarcerations. He remains at a high risk for criminal recidivism. He has a significant history of cannabis and cocaine abuse for some years and, from his accounts, ha[s] never participated in any professional substance abuse program, even until this time and while incarcerated. And he still appears at somewhat heightened risk for substance abuse relapse in the future.

While he appears largely free of suffering acute mental health symptoms or mental illness, he does present with some deeply ingrained and maladaptive personality character traits that are of concern. He presents as a characteristically angry, hostile, rigid, inflexible individual who is also rather detached, superficial and self-serving. . . . He shows significant propensity for irresponsibility and inconsistency in his life and lifestyle.

His obvious situation of . . . being incarcerated precludes his ability to care for a minor child at this time. However, even if he was not incarcerated, many of these basic personality characteristics and traits and his lifestyle contraindicate him being an independent care-giver to a minor child. That is, [defendant] is not supported as an independent care-giver to any minor child at this time or even within the foreseeable future.

Assuming his release in October 2008, which, at this point, is minimally six to seven months away, he would still likely need a significant period of upwards to nine to twelve months following release to . . . establish himself within the community despite his belief that he might be able to do so even more quickly. He has historically struggled to establish himself in a crime-free lifestyle as suggested by his recurrent incarcerations.

. . . .

[I]t was through the efforts of [DYFS] that [defendant] was finally recognized as the parent and he has now come forward with his plan. And his plan, as I understand it, is that, while he, at this point in time, has no place where he could take her nor could he care for her, he said that his mother should be granted custody of [L.T] through kinship legal guardianship. He said [that] once he was released from prison he would reside in the home with his mother and [L.T.] until he was able both financially and emotionally to assume the primary parenting duties for the minor child.

Well, [L.T.] has no bond with either [defendant] or his mother. Needless to say, it would have been impossible for a bond to have been formed since, truthfully, he only found out since the later months of 2007 that he was the father.

. . . .

Now, there was some situation with his mother as a relative care placement where [defendant] suggested that his mother should be the relative care placement. [DYFS] offered her visitation in attempts to build a bond with her. After attending one visitation, she ceased contact with [DYFS] and visitations with the minor child. Due to her failure to maintain contact with the child and ask for any further visitation, she was ruled out as a potential relative placement.

However, the letter that was sent to her by [DYFS] merely indicated that her visitation had been terminated and that was sent in March of 2008. It did not inform her that she had been ruled out as a care-giver. And so, consequently, there was nothing in the letter to indicate she had a right to appeal the decision.

However, she wasn't even visiting with the child. So, to say that she was considering being a potential care-giver doesn't make too much sense. However, a formal letter has been sent to the [paternal grandmother] now after that period of time indicating that she was a rule-out with regard to the placement of the child. And she does have an opportunity to file an appeal with regard to that.

. . . .

We do not have a situation here where we have any more time to spend attempting to work with either or both of these parents. We still do not know whether the father will be discharged at the end of this year or whether he will be there for an additional amount of time. But nevertheless, a number of months will still go by even at the date that he anticipates that he would be able to be discharged and then probably go to a halfway house. At that point in time, he still would not be in a position to provide a safe, stable and nurturing home for this child.

The trial judge entered an order memorializing her decision on May 13, 2008. This appeal followed.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION'S FAILURE TO PROVIDE THE DEFENDANT WITH DR. LEE'S PSYCHOLOGICAL EVALUATION IN DISCOVERY UNTIL THE DAY OF TRIAL VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO A FUNDAMENTALLY FAIR GUARDIANSHIP TRIAL

POINT II

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION VIOLATED ITS PARENS PATRIAE RESPONSIBILITIES TO THE DEFENDANT BY PROVIDING AN IMPROPER "INVERSE SERVICE" IN THE GUISE OF DR. LEE'S PSYCHOLOGICAL EVALUATION (RAISED IN PART BELOW)

POINT III

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS INSTEAD OF THE STATUTORILY MANDATED "BEST INTERESTS" TEST AS SET FORTH IN N.J.S.A. [30:4C-15.1(a)]

(A) THE DEFENDANT'S INCARCERATION WAS NOT A "HARM" COMPELLING ENOUGH TO JUSTIFY TERMINATION OF PARENTAL RIGHTS, AND THE DEFENDANT WAS ABLE TO PARENT L.[T]. IN TIME TO MEET HER NEEDS

(B) THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO THE DEFENDANT BECAUSE IT WAS NEVER COMMITTED TO HAVING A SUCCESSFUL FAMILY REUNIFICATION WITH THE DEFENDANT

(C) THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE

Having thoroughly reviewed these contentions in light of the record and the applicable law, we are convinced that they are without merit. Therefore, we affirm the judgment terminating defendant's parental rights to L.T. substantially for the reasons stated by Judge Strelecki in her decision rendered from the bench on May 13, 2008. R. 2:11-3(e)(1)(A). We add the following comments.

It is well established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However,

[p]arental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interest of the child standard.

[Id. at 347 (citations omitted).]

That standard mandates that an individual's parental rights not be terminated unless DYFS establishes by clear and convincing evidence each of the following criteria:

(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) [DYFS] 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 criteria "are not discreet 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.

On appeal, our scope of review of a trial judge's findings of fact are limited. Such findings "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We are "obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Moreover, due to the "special expertise" of Family Part judges in family matters, appellate courts accord particular deference to their factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Weighed against these standards, defendant's contentions afford him no relief. His first two arguments regarding Dr. Lee's evaluation are wholly without merit. As noted, the trial judge expressly afforded defendant the opportunity for an adjournment to retain his own psychological expert after hearing Dr. Lee's testimony. Defendant declined this offer. Therefore, he cannot now assert that DYFS's failure to provide him with Dr. Lee's report at an earlier time violated his right to a fair trial.

Defendant's argument that Dr. Lee's report constituted an "improper 'inverse service'" ignores the fact that the evaluation was not intended as a "service" to defendant; rather, it was a necessary element of DYFS's burden to establish the prescribed statutory factors by clear and convincing evidence. Had Dr. Lee's evaluation offered any positive prognosis for defendant's fitness and ability to parent L.T. in the foreseeable future, DYFS would, arguably, have had an obligation to provide such services to defendant in an effort to achieve the goal of reunification. As Dr. Lee's evaluation concluded, however, no such positive prognosis existed.

Contrary to defendant's assertion, DYFS did not obtain Dr. Lee's evaluation "in the guise of offering reunification services . . . ." Rather, as noted, DYFS proffered that evaluation in support of its complaint for guardianship and termination of parental rights. Moreover, as the trial judge noted, defendant had failed to avail himself of any programs to address his substance abuse and criminal recidivism issues.

Defendant's next argument, that the trial court improperly applied a "better interests" analysis, rather than the required "best interests" analysis, is directly contradicted by the record. After reviewing all of the testimony and documentary evidence and articulating the controlling legal principles, Judge Strelecki concluded:

I am satisfied that the best interests of this child will be satisfied by terminating the parental rights of both parents, both [the] mother and [the] father. And I'm further satisfied that . . . [DYFS] has proven the four-prong test by clear and convincing evidence and all the facts that I have placed upon the record I found by clear and convincing evidence. The four-prong test and N.J.S.A. 39:4[C-]15.1(a), and that is that the child's safety, health and development w[ere] endangered and will continue to be endangered by the parental relationship.

[(Emphasis added).]

The trial judge properly considered defendant's present and past incarcerations when weighing the statutory factors. "[I]ncarceration is clearly a relevant factor in determining whether parental rights may be terminated on grounds of abandonment." In re Adoption of Children by L.A.S., 134 N.J. 127, 138 (1993). In that case, the natural father was serving a "lengthy incarceration," having been "found guilty of committing the brutal first-degree murder of his brother's ex-wife." Id. at 142. Because the defendant had a relationship with his children prior to his incarceration, the Supreme Court remanded the order terminating his parental rights to have the trial court "determine whether the circumstances surrounding [the defendant's] incarceration justif[ied] the termination of parental rights based either on abandonment or parental unfitness or both." Id. at 143. In making that determination, the trial court was instructed to "consider evidence of [the defendant]'s performance as a parent before incarceration, to what extent his children were able to rely on him as a parent, and what effect, if any, he ha[d] made to remain in contact with his children since his incarceration." Ibid.

By contrast here, defendant has had no relationship with L.T. whatsoever. L.T. has never been "able to rely on him as a parent," and defendant made no effort to establish "contact with [L.T.] since his incarceration." Under those circumstances, we consider particularly instructive the Court's recognition that "the parent's incarceration may be a substantial obstacle to achieving permanency, security and stability in the child's life." Id. at 139. Clearly that was the concern of the trial judge in this case.

Defendant has "provided no reliable indication . . . that [he] will ever be [capable of being a parent] in the foreseeable future." K.H.O., supra, 161 N.J. at 357. "[P]lacement plans must not lose sight of time from the perspective of the child's needs. . . . The courts must consider the child's age, her overall health and development, and the realistic likelihood that the parent will be capable of caring for the child in the near future." Ibid. (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607-08 (1986)).

Considering defendant's history of criminal recidivism, compounded by his complete lack of any pre-existing relationship with L.T., we conclude that the trial judge properly weighed defendant's incarceration in her analysis of the statutory factors.

Defendant's criticism of DYFS for failing to make "reasonable efforts" to provide services to him is specious. Defendant was incarcerated during the entire period from prior to L.T.'s birth to the completion of the guardianship trial. As of the time of that trial, L.T. was close to two years old and had been in her foster home placement for almost one year. Moreover, defendant testified that he rejected the possibility of arranging for visitation with L.T. at the prison, once his paternity was established. Therefore, DYFS had no obligation to undertake efforts to arrange such visitation.

In addition, DYFS arranged visitation for defendant's mother with L.T.; despite DYFS's efforts, the paternal grandmother made only one such visit and thereafter ceased contact with DYFS. Under these circumstances, we conclude that DYFS made "reasonable efforts" to "help" defendant and to explore "alternatives to [the] termination of [his] parental rights . . . ." N.J.S.A. 30:4C-15.1(a)(3).

Finally, we consider defendant's remaining contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

L.T. is also known as L.G.; however, we shall refer to her as L.T. herein.

S.G.'s parental rights to Z.G. were terminated by judgment entered on May 19, 2005.

S.G. has not appealed from the judgment terminating her parental rights.

During the pendancy of this appeal, the Law Guardian filed a motion for summary disposition, noting that L.T. had been adopted by her resource family on July 16, 2008, the same day on which defendant belatedly filed his notice of appeal nunc pro tunc. On March 25, 2009, we entered an order denying the motion for summary disposition.

(continued)

(continued)

18

A-5651-07T4

RECORD IMPOUNDED

April 15, 2009