DIVISION OF YOUTH AND FAMILY SERVICES J.B and E.L.H IN THE MATTER OF THE GUARDIANSHIP OF A.S.S.C.H

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4254-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

J.B.,

 

Defendant-Appellant,

 

and

E.L.H.,

Defendant.

__________________________________

IN THE MATTER OF

THE GUARDIANSHIP OF

A.S.S.C.H.,

Minor.

__________________________________

March 13, 2012

 

Submitted February 14, 2012 Decided

 

Before Judges A. A. Rodr guez, Sabatino and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-48-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Larry Leung, Designated Counsel, on the briefs).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa J. Rusciano, Deputy Attorney General, on the brief).

 

Joseph Krakora, Public Defender, Law Guardian, attorney for minor A.S.S.C.H. (Avris Daniels, Assistant Deputy Public Defender, on the briefs).

 

PER CURIAM

J.B., the birth father of A.H.,1 a girl born in October 2006, appeals from the judgment of guardianship that terminated his parental rights to his daughter. E.L.H., the birth mother, consented to an identified surrender to the foster parents of A.H., and does not appeal the guardianship judgment against her. We affirm.

A.H. was born prematurely. Because hospital personnel were concerned about the birth mother's mental health and ability to care for A.H., the Division of Youth and Family Services (DYFS) was notified. The hospital staff also noted that J.B. acted aggressively while at the hospital. After a psychological evaluation indicated that the birth mother was unable to care for her premature newborn, DYFS determined that A.H. could not be released to her birth parents until they participated in various services.

DYFS explored placement with J.B.'s mother, but she was not interested. However, weeks later, J.B.'s mother contacted DYFS to indicate that she and J.B. were willing to care for A.H. DYFS executed a Dodd removal2 of A.H. from the hospital and placed the girl with a foster family. J.B. requested a paternity test.

DYFS began providing services for the birth parents. In December 6, 2006, Leslie Trott, Ed.D., a psychologist, performed a psychological evaluation on both parents. Her report was admitted in evidence. Dr. Trott found the birth mother to have "some slowness in social and emotional skills." She also opined that J.B. displayed "no evidence of emotional distress nor psychiatric dysfunction," but "harbor[ed] some misinformation regarding child rearing and should attend and graduate from parenting classes."

Pursuant to a court order, DYFS placed A.H. with her birth parents on March 19, 2007, and arranged for parenting skills classes for J.B. and in-home parenting classes. DYFS also implemented in-home nursing services to assist in the return of A.H. to the birth parents' care.

This placement of A.H. with her birth parents was brief. One month later, on April 19, 2007, DYFS received a referral from Newark Beth Israel Hospital. The birth mother had taken A.H. to the emergency room because the baby had a cough and fever. While at the hospital, the birth mother disclosed that there was domestic violence in her home and she did not want to return there. She reported that J.B had thrown a cup at her and pulled her by her throat. She wanted to go to a shelter, but the shelter would not take her and the baby. She asked that A.H. be placed through DYFS.

DYFS executed another Dodd removal, and placed A.H. with her original foster parents. A.H. has resided with them since the second removal. Thus, except for one month, in March/April 2007, A.H. has lived with her foster parents.

Nonetheless, at that time, DYFS planned for reunification of A.H. with her birth parents. In June 2007, J.B. was evaluated by Albert R. Griffith, Ed.D., a psychologist, and his report was admitted at trial. By this time, J.B. and the birth mother had separated. Dr. Griffith opined that J.B. did "not appear to present an abuse potential for the child," was "a reasonable candidate for custody" and did "not appear to suffer from any diagnosable psychological conditions."

As of September 24, 2007, DYFS still intended to continue their efforts to reunify J.B. and A.H. DYFS referred J.B. for additional counseling and parenting skills classes. DYFS also arranged supervised visitations with A.H. However, J.B. did not benefit from these programs.

On October 29, 2010, DYFS filed a complaint for guardianship. On January 10, 2011, the birth mother executed an identified surrender of A.H. to her foster parents. Trial began on March 7, 2011. Judge John J. Callahan presided at the trial.

At trial, DYFS presented two witnesses: Denise M. Williams Johnson, Ph.D., a psychologist, and DYFS caseworker Diana Trail. Dr. Johnson performed a psychological evaluation on J.B., as well as a bonding evaluation between J.B and A.H. J.B. denied that there was any physical violence in the home at the time A.H. was removed. J.B. noted that the birth mother did not sign a domestic violence complaint because "she knew she was lying."

When asked about DYFS and his progress, J.B. stated that "they want me to kiss their butts, some females are intimidated by me." Dr. Johnson observed that "although other people's poor attendance and chronic lateness may reflect their eventual problems following through on things for their children, [J.B.] does not believe this applies to him." J.B. asserted that DYFS was unorganized and "questioned why he has to complete services when he 'doesn t want to.'"

Prior to issuing this report, Dr. Johnson did not perform a bonding evaluation between A.H. and her foster mother, and also did not have a complete record to review. Dr. Johnson determined that J.B. does not understand the "impact of his inconsistency on the child or his parenting," which does "not bode well for the client being able to execute more adaptive, and/or different, general behavior or parenting behaviors." Although Dr. Johnson noted a general bond between J.B. and A.H., some of his behavior and his inconsistencies with visits "suggest this bond to be insecure." Dr. Johnson concluded her report by opining that "[t]he collective data do not support [J.B.] independently parenting his daughter at present."

By the time Dr. Johnson testified at trial, she had conducted a bonding evaluation between the foster mother and A.H. The bond between A.H. and her foster mother was positive and appeared superior to her bond with J.B, in that it "is sufficient to assuage any upset stemming from the termination of birth father's parental rights." Dr. Johnson noted that J.B.'s "ongoing non-completion of required interventions," coupled with her belief that "his rehabilitation would be long-term and not occur in the imminent future," suggests that it is in the best interest of A.H. to be adopted by the foster mother.

Ultimately, in Dr. Johnson's opinion, if A.H. were removed from the foster mother's care, "she would suffer harm" because she would "lose that level of consistency and nurturing that she has at this time." Her conclusion was based on the fact that A.H. has no recollection of living with or being raised by anyone else, and that her foster home is her "family that she has been with for all intents and purposes for the life that she can remember." Dr. Johnson also believed that removing A.H. from the foster mother would cause more harm because A.H. had gone long periods of time without seeing J.B. and without any negative behavior or indication of harm. She continued that "the foster mother has already been mitigating the harm that the child may have been suffering from not seeing her father."

DYFS worker Trail testified about the various services provided to J.B. and the outcome of his participation. She testified that J.B. attended domestic violence counseling at Final Stop, which he did not successfully complete.

In May 2009, DYFS referred J.B. to anger management counseling at Final Stop. He failed to complete the required sessions. DYFS referred him again. J.B. was terminated from the program. In July 2009, DYFS referred J.B. to anger management counseling at Tri-City. He was terminated from the program. In August 2009, DYFS referred J.B. back to anger management classes with Final Stop. Three weeks later, J.B. had an altercation with a Final Stop therapist. J.B. was terminated from Final Stop. DYFS referred J.B. again to Tri-City in September 2009 for anger management counseling and individual therapy. He failed to attend the required Tri-City supervised visitations with A.H.

In May 2009, DYFS referred J.B. to Babyland for parenting skills classes. J.B. successfully completed the classes, but on three different occasions, J.B. failed to show up for scheduled psychological evaluations.

In April 2010, DYFS implemented therapeutic visitations that took place in J.B.'s residence. At the first visit, a supervisor from Tri-City saw that J.B. was talking to himself "when he thought people were looking at [A.H.] the wrong way." J.B. also acted inappropriately towards the supervisor. He looked her "up and down," told her multiple times that she "looked nice," and made her feel extremely uncomfortable.

During a May 4th therapeutic visit, the same supervisor noted that J.B. "speaks with [A.H.] as if she is an adult. He constantly uses slang and will rap verses from songs to her for no apparent reason." As the supervisor discussed J.B.'s progress in reaching his goal, J.B. became "loud and upset," and stated, "I'm not changing for no one!"

At the next visit, J.B. threatened A.H. that he would "pop" her, and not to "get it twisted, just because the place of the visit changed doesn t mean I won[']t who[o]p that butt." When the supervisor called J.B. after the visit to address the threats, J.B. again became loud, cursed at her, and said, "I rather ya'll send her to an orphanage[,] th[a]n to bow down and kiss anyone's ass."

Because of J.B.'s behavior, the supervised visits were changed to take place at Ruth's Unity House. During these visits, J.B. "popped" A.H. with his finger, told her she is a brat, slept through the visit, asked if a mark on her neck was a hickey, and told her he would "steal off on her," a slang term meaning to punch someone in the face.

On July 6, 2010, the supervisor noted that J.B. refused to take most of her suggestions regarding A.H. During the month of June 2010, A.H. cried during the majority of the visits with J.B. The crying continued during the July 2010 visits. On July 13th, J.B. was thirty minutes late for the visitation. A.H. cried and asked for her foster mother. At another visit, J.B. could not calm A.H. He handed A.H. over to the supervisor and slept for the rest of the visit.

In August 2010, A.H. began "slapping, scratching, clawing and kicking [J.B.]" The supervisor recommended that the visits be reduced from two hours to one hour. In November 2010, Ruth's Unity House advised DYFS that it was terminating J.B. from their program. Despite numerous attempts to contact him, J.B. had not attended a visit with A.H. since September 2010. Besides, the program observed that J.B. "refuses to take any responsibility for his actions nor does he attempt to cooperate with services put into place that were needed in order for him to regain custody of A.H."

DYFS referred J.B. to Ruth's Unity House again. However, J.B. advised the program that he did not want to attend the visitations. DYFS then referred J.B. to Tri-City again. J.B. did not attend visits there. From September 2010 until the guardianship trial in March 2011, J.B. did not participate in any DYFS services.

After moving several expert reports into evidence, DYFS rested. This evidence included a psychological report of the birth parents by Dr. Trott; psychological reports of J.B. and the birth mother by Dr. Griffith; a psychological report of J.B. by Mark S. Singer, Ed.D.; an evaluation of J.B. by Alexander Iofin, M.D.; and a bonding evaluation of J.B. and A.H. by Dr. Johnson.

J.B. was the sole defense witness and testified on his own behalf. J.B. stated he completed the Babyland parenting skills courses, and admitted that he had not visited with A.H. since October of 2010. He admitted that he was court ordered to participate in domestic violence counseling and anger management counseling, but did not complete the services.

After reviewing all the evidence, Judge Callahan issued an oral opinion, finding that DYFS had established by clear and convincing evidence that it would be in the best interest of A.H. to terminate J.B.'s parental rights.

On March 15, 2011, the judge entered an order terminating J.B.'s parental rights. As to prong one, the judge found that

the combination of parental inability or disability coupled with the troubled emotional atmosphere that was generated within the [E.L.H. and J.B.] household created more than sufficient evidence to confirm that A.H.'s safety, health, and development under prong one of the statute in question constituted a harm which would have a deleterious effect on the newborn.

 

In terms of prong three, the judge found that DYFS offered J.B. a variety of services including evaluations, anger management counseling, parenting skills classes, bus passes and therapeutic visitation. Further, the court was satisfied that DYFS considered alternative placement with the paternal grandmother and J.B.'s sister. Both were unavailable as placement options. The judge found that DYFS "offered every appropriate service as well as done [sic] their tasks properly by clear and convincing evidence in all respects."

With regard to the final prong, the court considered Dr. Johnson's expert testimony and reports, which stated that the bond between A.H. and the foster mother was strong enough to mitigate any disruption from termination of J.B.'s parental rights. The judge strongly relied on the fact that A.H. did not suffer any harm in the months preceding the trial, during the time which she did not have any visitations with J.B. J.B. filed this appeal.

On appeal, J.B. contends:

THE DECISION TO TERMINATE J.B.'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF SUBMITTED EVIDENCE AND TESTIMONY BECAUSE DYFS FAILED TO PROVE THE FOUR PRONGS BY CLEAR AND CONVINCING EVIDENCE.

 

Prong 1: The Trial Court Erred In Finding That DYFS Proved The First Prong By Clear And Convincing Evidence Because DYFS Failed To Establish A Nexus Between The Father's Actions And The Requisite Statutory Harm.

 

Prong 3: The Trial Court Erred In Finding That DYFS Had Provided Reasonable Efforts To The Father Because DYFS Failed To Continuously Provide Court-Ordered In-Home Therapeutic Visitations, Which Prejudiced Bonding Between The Father And His Daughter.

 

Prong 4: The Trial Court Erred In Concluding That DYFS Had Demonstrated, By Clear And Convincing Evidence, That The Termination Of The Father's Parental Rights Would Not Do More Harm Than Good Because DYFS' Expert's Opinion Had No Bearing On K.H.O.'s Balancing Test,3 DYFS' Expert Did Not Have All The Necessary Collateral Information For Review, And DYFS' Expert's Bonding Evaluation Of The Foster Mother-Child Relationship Was Only 40 Minutes Long.

 

J.B. submitted a reply brief contending:

THE RESPONDENTS, DYFS AND LAW GUARDIAN, FAILED TO ESTABLISH THE FOUR PRONGS BY CLEAR AND CONVINCING EVIDENCE BECAUSE RESPONDENTS (a) DID NOT SET FORTH ANY CREDIBLE EVIDENCE OF POTENTIAL EMOTIONAL HARM UNDER PRONG ONE, (b) WAS UNABLE TO REFUTE APPELLANT'S PRONG THREE ARGUMENTS REGARDING DYFS' FAILURE TO CONTINUOUSLY PROVIDE COURT-ORDERED IN-HOME THERAPEUTIC VISITATIONS, WHICH PREJUDICED BONDING BETWEEN THE FATHER AND HIS DAUGHTER, AND (c) FAILED TO ADDRESS THE TRIAL COURT'S FLAWED RELIANCE ON DYFS' EXPERT OPINION, WHICH HAD NO BEARING ON K.H.O.'S BALANCING TEST, WHERE THE EXPERT DID NOT HAVE ALL THE NECESSARY COLLATERAL INFORMATION FOR REVIEW, AND THE EXPERT'S BONDING EVALUATION OF THE FOSTER MOTHER-CHILD RELATIONSHIP WAS ONLY 40 MINUTES LONG.

 

DYFS and the Law Guardian for A.H. urge affirmance.

A termination of parental rights must be supported by clear and convincing evidence of the following factors announced in N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-05 (1986), and later codified in N.J.S.A. 30:4C-15.1(a):

(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. . . .;

 

(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.

 

The applicable standard of appellate review requires that we defer to a trial judge's factual findings when these findings are based on credible evidence in the record, unless we are convinced those findings 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)); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

The testimony, along with the admitted expert reports and other proof adduced at trial, show conclusively that J.B. is unwilling or unable to parent A.H. properly. His lack of effort at becoming a capable, consistent caretaker for A.H. puts his daughter's well-being at risk. The record demonstrates that J.B. has an unresolved anger management problem.

We reject the arguments raised in the reply brief that "all the necessary collateral information" was not presented for review; or that the judge did not address the K.H.O. Balancing test; or that the A.W. factors were not proved by sufficient credible evidence. To the contrary, after careful review, we conclude that the record contains clear and convincing evidence to support Judge Callahan's findings. We also conclude that the judge applied the correct legal standards to the facts that he found. We discern no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in Judge Callahan's March 15, 2011 oral decision.

A

ffirmed.

1 She is referred to in the complaint as A.S.S.C.H. For clarity, this opinion omits her three middle initials.

2 "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. "Pat" Dodd in 1974.
 

3 In re Guardianship of K.H.O., 161 N.J. 337 (1999).