NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.L.F. and C.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4569-09T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.L.F.

Defendant,

and

C.H.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF: J.K.F. and A.F., minors.

_____________________________________

May 4, 2011

Submitted March 16, 2011 - Decided

Before Judges Ashrafi, Nugent and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-64-09.

Yvonne Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Deirdre C. Fichter, Deputy Attorney General, on the brief).

Yvonne Segars, Public Defender, Law Guardian, attorney for minors J.K.F. and A.F. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Defendant C.H., the father of daughters J.K.F., age three, and A.F., age two, appeals from the judgment of the Chancery Division, Family Part, terminating his parental rights. The Family Part also terminated the parental rights of the children's mother, D.L.F., but she did not appeal. We affirm.

Defendant contends that the family court erred in finding that the Division of Youth and Family Services (DYFS) proved by clear and convincing evidence the criteria required by N.J.S.A. 30:4C-15.1a for termination of his parental rights. Judge Terence P. Flynn tried this case over six days in which DYFS presented evidence establishing the circumstances that resulted in its removal of the children, its efforts to provide services to the parents, and its attempts to place the children with the parents' relatives. DYFS presented the testimony of four caseworkers and two experts, and introduced voluminous documents. The experts testified about the bonding of the children with their foster parents, who intended to adopt them, and about defendant's inability to safely and adequately parent his children. We affirm substantially for the reasons stated by Judge Flynn in his oral opinion delivered on April 29, 2010.

Our standard of review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court's assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). A reviewing court "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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to insure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605). Judge Flynn's conclusions are supported by the substantial credible evidence presented by DYFS. We briefly summarize that evidence.

DYFS removed J.K.F. from the care and custody of D.L.F. in August 2007, less than two months after J.K.F.'s birth; and removed A.F. within a week of her birth in July 2008. In August 2007, when DYFS removed J.K.F. from the hotel room where she was living with her mother, defendant was present and told the DYFS caseworker he did not have his own place, had just moved back from Georgia, and could not care for J.K.F. because of lack of housing and the likelihood that he would test positive for an illegal substance. When A.F. was born in July 2008, defendant was out of town. Defendant failed to complete an inpatient substance abuse program, failed to attend substance abuse programs recommended by DYFS, and disregarded court orders to attend substance abuse programs. He tested positive for marijuana on March 14, 2008, and positive for marijuana and cocaine on August 27, 2008. Defendant also failed to complete parenting skills classes recommended by DYFS.

Defendant maintained supervised visits with the children, but continued to abuse illegal substances. Defendant was incarcerated on November 12, 2008 for assault and remained imprisoned until November 2009.

During the trial on December 7, 2009, defendant testified that he entered a substance abuse program after he was released from prison, but tested positive for marijuana and cocaine the previous Friday. Judge Flynn noted that a report had come back negative that day.

Defendant was unable to provide a stable residence for the children. When DYFS removed J.K.F. from her mother's parental care, defendant admitted he had no stable place to live, and subsequently admitted moving from place to place. During the trial he was living in a room provided by social services, but the room could not accommodate the children.

DYFS presented expert testimony at trial that the children had bonded with their respective foster parents, removing them would cause irreparable harm, and the foster parents were capable of providing the children with a safe and stable environment that would physically and emotionally nourish them. The psychologist who evaluated defendant concluded:

It is undeniabl[y] apparent that [C.H.] is not able to provide a permanent, safe, and stable home and family life for either [J.K.F.] or [A.F.]. In light of his circumstances, coupled with conclusions drawn from the current evaluation indicating that [C.H.] has a guarded prognosis to remain out of trouble, no support can be given for reunification of the children in his care. Permanency independent of [C.H.] for both [J.K.F.] and [A.F.] is fully supported, not only by [C.H.'s] current circumstances, but also clinical information and conclusions drawn from test materials. While it is indeed hoped that [C.H.] will make significant and substantial changes in his life to promote stability for himself, there are not indications that he will be able to complete such in the foreseeable future, with full clinical support provided by the present examiner to terminate his parental rights and facilitate permanency via adoption of the children in a stable and safe home and family environment.

Defendant argues that DYFS failed to provide reasonable services to him, including visitation with his children, while he was in prison. We have recognized "the difficulty and likely futility of [DYFS] providing services to a person in custody...." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006). More significantly, before defendant was incarcerated, DYFS provided him with supervised visitation, and opportunities to attend drug rehabilitation programs and parenting classes. Considering the substantial evidence developed by DYFS at trial, and the specific factual findings made by Judge Flynn, failing to provide services while defendant was incarcerated does not negate Judge Flynn's conclusion that DYFS proved the criteria required by N.J.S.A. 30:4C-15.1a for terminating defendant's parental rights.

In his eighty-eight page comprehensive oral opinion, Judge Flynn exhaustively reviewed the evidence presented by the parties and made specific factual findings that are well supported by the record. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). Judge Flynn concluded that these findings establish by clear and convincing evidence the statutory requirements of N.J.S.A. 30:4C-15.1a. In re Guardianship of K.H.O., 161 N.J. 337 (1999).

The order terminating C.H.'s parental rights to his children, J.K.F. and A.F., is affirmed.