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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2262-08T4A-2262-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.C.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.C.,

a minor.

_________________________________

 

Submitted March 10, 2010 - Decided

Before Judges Stern, Sabatino, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-31-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Colleen A. McCarthy, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor A.C. (Elahna Strom Weinflash, Designated Counsel, on the brief).

PER CURIAM

Defendant R.C. appeals from a final judgment of guardianship that terminated his parental rights as to his daughter, A.C., who was born in January 2005, and was four years of age at the time of trial. On appeal, defendant argues that the New Jersey Division of Youth and Family Services (DYFS or the Division) failed to establish the four prongs of N.J.S.A. 30:4C-15.1(a), commonly known as the best interests of the child test, by the requisite clear and convincing standard of proof. Both the Division and the law guardian recommended termination of defendant's parental rights, and Judge Thomas J. Critchley agreed. After a thorough review of the expansive record, we too believe that all four prongs of the best interests test were sufficiently established by the Division, and therefore affirm.

I.

Defendant is a father who has been incarcerated for a majority of his daughter's life. While he was incarcerated, DYFS had been working predominantly with the child's mother, maternal grandmother, and half-siblings for several years in an effort to aid the mother in parenting the children, with the ultimate goal being reunification. These efforts went unrealized, as the Division eventually needed to execute an emergency removal of the children from the mother's care when she left them unattended in a hot car, with the engine running, on a summer day while shopping. Neglect was substantiated, and DYFS began providing basic essential care to the children along with necessary services to the mother.

Because defendant was incarcerated at the time of the removal, and there were no other family alternatives for placement, the children, including A.C., were placed with their maternal grandmother, S.T., with whom they continue to reside today. The parental rights of A.C.'s mother were ultimately terminated when she entered an identified surrender of A.C. and her half-siblings to the maternal grandmother.

While this interaction between mother, grandmother, and the Division progressed, defendant had been incarcerated as an adult several times between June 1999 and March 2008. Most recently, in March 2006, defendant was sentenced to a five-year prison term for his guilty plea of second-degree eluding, N.J.S.A. 2C:29-2(b), and was ultimately released in March 2008.

There is some evidence that prior to his incarceration, defendant did attempt to provide some financial support and baby supplies for the child, but was allegedly not entirely confident that A.C. was in fact his biological daughter. Therefore, in December 2006, a paternity test was administered to defendant while he was imprisoned, and he was determined to be A.C.'s biological father.

While incarcerated, and notably after learning that A.C. was in fact his biological daughter, defendant participated in services available to him, including substance abuse treatment, life skills, parenting classes, and anger management programs. These services were provided by the jail facility, not through the Division itself, as most of the Division's efforts were instead focused on the children and mother.

Defendant was subsequently transferred from prison to two different halfway houses: first to Talbot Hall in Kearny and then to Tully House in Newark at which he remained until his discharge from the prison system. It was at this time that defendant informed DYFS that he wished to regain custody of his daughter and begin to turn his life around. Around the same time, A.C.'s maternal grandmother indicated that she wished to pursue adoption of A.C. and both of A.C.'s half-siblings, as opposed to pursuing a Kinship Legal Guardianship (KLG) proceeding.

Beginning in September 2007 and while defendant was confined at the halfway house, the Division arranged for weekly visitation between defendant and A.C. During these visits, and for the several months of scheduled visits thereafter, DYFS caseworkers reported that A.C. was reluctant to open up to her father or to be responsive to his questions or efforts to engage her in play.

When defendant was released from Tully House, he told caseworkers that he was going to live at his father's home, but instead moved in with his girlfriend, H.G., in Newark, and obtained employment with a moving company. Judge John B. Dangler, who presided at the case management conferences, required R.C. to submit a parenting plan to the court, which defendant ultimately outlined and prepared with H.G. This plan was submitted to the court on May 2, 2008, and indicated, among other things, that daycare and health insurance arrangements were in place for A.C. should the couple be awarded custody of the child.

Defendant submitted to psychological and bonding evaluations at the request of the law guardian. These were conducted by three separate experts, the first of which took place on June 16, 2008, by licensed psychologist Dr. Sueli Petry, Ph.D. This particular bonding evaluation was conducted between A.C., her half-siblings, and the maternal grandmother, and not between A.C. and defendant. Dr. Petry concluded that the children would suffer psychological harm if separated from each other or from their current caregiver, S.T.

Dr. Rachel Jewelewicz-Nelson, Ph.D., also a licensed psychologist, conducted the next round of psychological and bonding evaluations, but this time between R.C., H.G., and A.C. She ultimately concluded that defendant was too passive in his efforts to effectively parent the child, and that because he clearly is not the child's psychological parent, a significant period of time would be needed in order to allow any sort of psychological attachment to develop between defendant and his daughter.

Lastly, on July 17, 2008, defendant underwent a psychological evaluation by defendant's expert witness, licensed psychologist Dr. Susan Herschman, Psy.D., who found no underlying psychological issues, and concluded that defendant expressed a strong interest and desire in wanting to care for A.C. In sum, Dr. Herschman opined that because the child was young enough, there was still enough time for defendant and his daughter to develop a meaningful relationship; therefore, she recommended reunification, followed by long-term therapy for both father and daughter.

In rendering their ultimate recommendations, both Drs. Petry and Jewelewicz-Nelson recommended KLG as opposed to termination of parental rights, in order to permit A.C. to remain with her current caregiver and half-siblings for the time being, while still affording defendant the necessary time to get his life back on track and develop a relationship with his daughter, so that he might potentially regain custody.

While defendant was undergoing these evaluations, the court generously granted him additional visitation time with A.C., supervised by the Division, as well as visits scheduled with the maternal grandmother and supervised by S.T. at her home. For reasons that remain unclear, defendant failed to schedule any of these additional visits with S.T., and a span of two months went by without his taking advantage of the court's increased grant of visitation.

As a result of this seemingly lax attitude exhibited by defendant, both Drs. Petry and Jewelewicz-Nelson, who had originally recommended KLG, changed their minds, instead suggesting termination of parental rights followed by adoption of A.C. by the maternal grandmother, S.T. Such a failure on defendant's part to diligently work towards a reunification, in addition to the strong bond demonstrated between siblings and their current caregiver, suggested to the experts that it was best to instead terminate defendant's parental rights.

The guardianship trial commenced on September 22, continued through September 24, and concluded on November 5, 2008. The trial, presided over by Judge Critchley, included testimony from the three experts, along with Division caseworkers. All testified that A.C. was very bonded to S.T. and her half-siblings, and that while defendant was certainly making strides towards improving his life, he was not the minor's psychological parent, and that he would not be able to mitigate the harm done to A.C. if she were to be separated from her present caregiver and siblings.

Judge Critchley ultimately determined that the Division proved through clear and convincing evidence that it would be in A.C.'s best interests for defendant's parental rights to be terminated, so that the minor could remain in the care of her maternal grandmother, and additionally maintain her important relationship with her half-siblings. This appeal followed.

II.

It is well settled that when seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, through clear and convincing proof, the following evidence:

(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 [D]ivision 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). See also New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

The termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992). As the Supreme Court of the United States has noted, "[f]ew forms of state action are both so severe and so irreversible." Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1398, 71 L. Ed. 2d 599, 610 (1982); see also In re Adoption of Children by G.P.B., 161 N.J. 396, 403-04 (1999). Government should not intrude on parental rights unless a child's "physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979).

We are not to disturb the trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Due regard must be given to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to personally see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). Moreover, given the Family Part's special expertise, we must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.

III.

Regarding the first prong of the best interests test, Judge Critchley concluded that the Division aptly proved, by clear and convincing evidence, that defendant clearly endangered the child's health and safety. We concur.

Although defendant's incarceration cannot be the sole factor to justify a finding of endangerment, see New Jersey Div. of Youth & Family Servs. v. L.A.S., 134 N.J. 127, 143 (1993), it is nonetheless an important, relevant factor. The court found that due to defendant's long and multiple periods of incarceration during A.C.'s short life, this constituted constructive abandonment. The potential countervailing factors identified in L.A.S, supra, 134 N.J. at 143, are not adequately shown by this record to compel a different conclusion.

We reject defendant's argument that because he was not unequivocally certain that the minor was in fact his biological child, his incarceration could therefore not constitute abandonment or harm to the child. It is clear to us that while defendant's attitude towards caring for A.C. improved after he positively learned of his paternity, his visits and support were nonetheless sporadic at best. Even the experts who conducted the bonding evaluations noted that defendant, notwithstanding his incarceration, did little to further his relationship with his daughter in the time that he had.

In light of all the evidence presented, we find that Judge Critchley was correct in concluding that DYFS proved, through clear and convincing evidence, that defendant has caused harm to the health and development of A.C. as a result of the lack of a parental relationship, satisfying N.J.S.A. 30:4C-15.1(a)(1).

Considering the elements of the second part of the best interests test, we have noted that "[w]hile the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." New Jersey Div. of Youth and Family Servs. v. D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 348-49, 351-52).

While defendant may arguably be willing to provide a safe and stable home for A.C., he appears fundamentally unable to do so at this time, due to the incipient stages of his personal recovery and re-introduction into society after a lengthy period of incarceration. We have routinely concluded that parental unfitness under the second prong of the statute may be adequately demonstrated by the Division if it can be shown that the parent has failed to "provide a 'safe and stable home for the child' and [that] a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (citing N.J.S.A. 30:4C-15.1(a)(2)).

After reviewing the evidence presented, we are confident that the trial court correctly concluded that while defendant was arguably moving in the right direction and turning his life around, the time needed for defendant to be able to adequately support A.C. was too great. Specifically, Judge Critchley noted that DYFS properly recommended termination in this case because, with respect to prong two, "postponing placement at this juncture . . . would add to the harm just because of the uncertainty and instability" in defendant's life.

We agree, noting that "keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." New Jersey Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) certif. denied, 171 N.J. 44 (2002). Therefore, we find that Judge Critchley was correct in concluding that DYFS proved, through clear and convincing evidence, that defendant is unable to provide a safe and stable home for A.C. either at this time or at any time in the foreseeable future, satisfying N.J.S.A. 30:4C-15.1(a)(2).

Under the third prong of the best interests test, two considerations must be made by the reviewing court. As the statute indicates, the Division must prove, by clear and convincing evidence, that it made reasonable efforts to provide services to the parent in order to aid reunification. N.J.S.A. 30:4C-15.1(a)(3). Additionally, DYFS must show that it explored other alternatives to termination of parental rights prior to recommending termination. Ibid.

As our Supreme Court has established, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for his children is not determinative of the sufficiency of DYFS's efforts at family reunification." D.M.H., supra, 161 N.J. at 393. These efforts must be assessed against the standard of adequacy in light of the totality of circumstances in a particular case.

At the guardianship trial, Judge Critchley took note of the context in which the Division was required to provide services to defendant, noting that while "there were not always direct services provided by the Division to [defendant] that was frequently because he was incarcerated." We agree with the findings of the court; while the Division provided what services it could to defendant while he was incarcerated, he utilized other services while in the halfway houses, but failed to take advantage of additional visitation time. The Division can only do so much, and adequately fulfilled its statutory obligations here.

We also find that the court's conclusion regarding the alternatives to termination of parental rights, specifically KLG, was appropriate. As we have held, "the purpose of this alternative legal arrangement is to address the needs of children who cannot reside with their parents due to their parents' incapacity or inability to raise them and when adoption is neither feasible nor likely." New Jersey Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007); see also New Jersey Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004).

Upon first glance, KLG may appear to be an appropriate option in this case, especially since defendant has been making strides to become more stable in order to provide for his daughter. Nevertheless, KLG is only appropriate when adoption is not feasible or likely. N.J.S.A. 3B:12A-1(c). As Judge Critchley correctly found, adoption of A.C. is both likely and feasible in this case, as the maternal grandmother has been consistently clear in her commitment to adopting the three displaced grandchildren.

Between the array of services that were available to defendant despite his lengthy incarceration, and because adoption of A.C. was feasible and likely, we find that the court was correct in finding that the Division satisfied, by clear and convincing evidence, prong three of the best interests test, N.J.S.A. 30:4C-15.1(a)(3).

Lastly, we find that the trial court properly determined that DYFS had sustained its burden under prong four of the best interests test. After a thorough review of the testimony and reports submitted by the Division's experts at trial, it is clear to us that it was proper for Judge Critchley to conclude that separating A.C. from her half-siblings and maternal grandmother would do more harm than good.

The fourth prong acts, in essence, as a last obstacle against termination. New Jersey Div. of Youth and Family Services v. G.L., 191 N.J. 596, 609 (2007). "Merely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough" to satisfy the requisite burden of proof. G.P.B., supra, 161 N.J. at 404. Even if the Division can prove a strong bond between the minor and the foster parent, and despite the fact that reunification with a biological parent would not occur for several months, this is not a sufficient basis upon which to terminate parental rights. New Jersey Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005) (stating "bonds [with the foster parent] alone are an insufficient basis on which to terminate . . . parental rights.") (citing State v. T.C., 251 N.J. Super. 419, 432-33 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992)).

In light of these considerations, Judge Critchley noted the strong bond between A.C. and her half-siblings, along with the "severe, enduring, irreparable harm" that the minor would suffer should the relationship between her and S.T. be terminated. Additionally, the court was concerned with the fact that defendant would not be able to "remediate the significant harm that would result not only removal of one sibling from the other two, but removal from [S.T.], the maternal grandmother who at least one expert described as the psychological parent of the children."

To us, the evidence presented is clear: all of the experts testified that A.C. would suffer substantial harm if separated from her siblings and maternal grandmother, with whom she had very strong bonds. Because there is substantial credible evidence that A.C. is doing well in her current placement, that she has an incredibly strong bond with her siblings, and in light of defendant's own substantial shortcomings, the judge did not err in concluding that termination of parental rights was the appropriate course of action in this case.

Affirmed.

 

(continued)

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2

A-2262-08T4

RECORD IMPOUNDED

April 13, 2010