NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.W. and M.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3083-09T3

A-3084-09T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.W. and M.C.,

Defendants-Appellants.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.C.-W., a minor.

________________________________________________________________

November 15, 2010

Submitted October 19, 2010 - Decided

Before Judges Payne, Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-124-09.

Yvonne Smith Segars, Public Defender, attorney for appellant E.W. and M.C. (Brian Donnelly, Designated Counsel, of counsel and on the brief in A-3083-09T3; Mark E. Kleiman, Designated Counsel, on the briefs in A-3084-09T3).

Paula T. Dow, Attorney General, attorney for respondent, (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lorena L. Salzmann, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor D.C.-W. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

M.C. and E.W. are the mother and father of D.C.-W. Their separate appeals from orders terminating their respective parental rights were consolidated by this court. We affirm substantially for the reasons stated by Judge Hayden in a written opinion issued on January 21, 2010. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

Two years ago we affirmed the termination of defendants rights to their older daughter, D.L.C., who is about two and one-half years older than D.C.-W. D.L.C. was removed from her parents care when she was one month old. Judge Hayden also presided over the trial terminating defendants' parental rights to D.L.C. N.J. Div. of Youth & Family Servs. v. M.C., No. A-1735-07 (App. Div. Oct. 24, 2008); N.J. Div. of Youth & Family Servs. v. E.W., No. A-2804-07 (App. Div. Oct. 24, 2008). At that time we noted that the psychologist retained by the Division of Youth and Family Services (Division), Dr. Frank Dyer, reported that M.C. was mildly retarded and

also had extremely severe psychological and behavioral problems that left her with poor impulse control, defective judgment and a great deal of poorly managed aggression. He concluded that she was far too disorganized psychologically to provide a child with the requisite degree of nurturance, affection, positive role modeling, stimulation and physical protection. In his opinion, the prognosis for M.C. acquiring adequate capacity to parent was extremely poor.

[M.C., supra, No. A-1735-07 (slip op. at 4).]

Dr. Dyer found D.L.C.'s father, E.W., had "a history of multiple incarcerations for violent offenses, possession of a firearm, and theft." Additionally, Dr. Dyer noted that E.W. had a history of severe head trauma resulting from a physical altercation in which he was struck in the head with a pistol and was comatose for seven days." Due to the combination of his permanent neurological impairment caused by the head trauma, E.W.'s mildly retarded intellectual functioning, aggressive behavior, and use of alcohol and marijuana, Dr. Dyer found E.W. to have an extremely poor capacity to parent. E.W. s visits with D.L.C. were eventually terminated due to his repeated disruptive behavior.

A bonding evaluation may be conducted between a child and his or her biological or foster parents to determine the degree of psychological harm that will befall the child if the rights of his or her biological parents are terminated. See In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992). E.W. s bonding evaluation with D.L.C. was negative. He arrived smelling of alcohol and behaved in a menacing, psychotic fashion toward his daughter. Dr. Dyer also conducted a bonding evaluation of M.C. and D.L.C. and ultimately found that D.L.C. had not bonded with either parent.

Both parents were even less involved with D.C-W. D.C.-W. never lived with either of his biological parents. He was born prematurely at twenty-nine weeks of gestation weighing under three pounds. The Division was granted custody of D.C.-W. within a few days of his birth, bringing him from the hospital to his current foster parents. Dr. Dyer concluded in a bonding evaluation with the foster parents that at the age of ten months, D.C.-W. was profoundly attached to his foster parents and would suffer a traumatic loss if separated from them. D.C.-W. has lived with these foster parents his entire life, and they have indicated a desire to adopt him.

As Judge Hayden described in detail in her thorough opinion, neither of D.C.-W. s biological parents have lived in a safe and secure home suitable for raising a child. Their problems with violence, mental illness and substance abuse persist. At the time of trial M.C. lived with a man with a long criminal history and multiple incarcerations. He did not cooperate with the Division to allow an evaluation.

On appeal E.W. argues generally that the Division has not met its burden of proof, raising specifically the argument that the Division did not make reasonable efforts to reunify him with his son. We find this argument lacks merit because the Division was relieved of the requirement to make reasonable efforts to unify the child with his parents pursuant to N.J.S.A. 30:4C-11.3, due to the prior termination of their parental rights to D.L.C.

M.C. argues on appeal that her son should have been placed with his father s relatives in North Carolina who were approved for placement through the Interstate Compact for the Placement of Children (ICPC).1 N.J.S.A. 9:23-5.

Six weeks after D.C.-W.'s birth, the Division sent out a request under the ICPC seeking home studies for several of E.W.'s relatives located in North Carolina. This application was lost and not resubmitted until ten months later. M.C. argues that this unnecessary delay caused by the Division s failure to pursue the interstate process in a timely manner should not have prevented this out-of-state placement. M.C. argues that a relative placement might have provided her with increased contact with her child in the future.

One of the homes to be assessed under ICPC was that of a couple who had previously offered themselves as a relative resource for D.L.C., and now expressed an interest in doing the same for D.C.-W. These relatives of the father met with the Division within three months of D.C.-W. s birth. The Division also facilitated one visit for them with the baby. M.C. objected at the time to D.C.-W. s placement with these relatives in North Carolina as it would interfere with her ability to visit D.C.-W.

When D.C.-W. was fifteen months old, these relatives were recommended as a placement home by North Carolina through the ICPC. Dr. Dyer issued a supplemental opinion at that time in which he explained that due to D.C.-W.'s attachment to his foster parents and his lack of resiliency, it would be in the child's best interests to remain in his current home rather than being placed with relatives who were total strangers to him. Dr. Dyer testified at trial that "without question in terms of [D.C.-W.'s] best prospects for mental health and personality development, the preferable course would be to allow him to remain with his current parental love objects and attachment figures, the foster parents.

The focus must always remain on the child. Even if D.C.-W. would have been placed in North Carolina had the Division promptly pursued the ICPC, which is by no means certain,2 the remedy is not to punish the child for the Division s delay. At the time of the ICPC approval in October 2009, D.C.-W. should not have been separated from his foster parents, who were the only caretakers he had ever known, in order to be placed with strangers, albeit blood relatives. See N.J. Div. of Youth & Family Servs. v. M.F. & M.M. Sr., 357 N.J. Super. 515, 528-29 (App. Div. 2003) (stating that there is no common law or statutory presumption in favor of placing children with relatives over third parties.). Dr. Dyer found that D.C.-W. s continued placement with his foster parents was in his best interests based on the child s profound attachment to his foster parents coupled with his lack of resiliency due to his premature birth, causing delays in self-help and motor skills.

M.C. also argues that she did not harm her son. The Division, however, does not need to demonstrate harm has occurred. The Division needs to establish that the child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1) (emphasis added). As is evident, the Legislature has not required the Division to wait until actual harm has occurred, and thus putting the child at substantial risk of harm suffices to satisfy N.J.S.A. 30:4C-15.1(a)(1). "Courts need not wait until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

The parents presented no expert testimony. M.C. was disruptive during the first day of trial and did not attend thereafter. E.W. testified in an angry and bizarre manner inconsistent with his professed ability to care for his son. The permanent severance of D.C.-W. s relationship with his biological parents serves the child s best interests by providing him the opportunity to develop to his maximum potential.

1 "The goal of the ICPC is to facilitate placements that 'serve the best interests of the children, whether interstate or intrastate.'" N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 631 (App. Div. 2002)(quoting B.W. Hartfield, The Role of the Interstate Compact on the Placement of Children in Interstate Adoption, 68 Neb. L.Rev. 292, 297 (1989)).

2 Judge Hayden found that "it is not clear that the child would have been moved to North Carolina under the protest of [M.C.], who was visiting the child regularly at the time."