DIVISION OF YOUTH AND FAMILY SERVICES v. G.G IN THE MATTER OF THE GUARDIANSHIP OF B.S.G a Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5045-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

 

G.G.,

 

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF B.S.G.,

a Minor.

____________________________________

March 15, 2012

 

Submitted February 27, 2012 - Decided

 

Before Judges Skillman and Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-38-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin McLaughlin, Designated Counsel, on the brief).

PER CURIAM

Defendant, G.G., appeals from an April 7, 2011 judgment of guardianship terminating his parental rights to his daughter, B.S.G., who was born on August 14, 2008. Defendant has been incarcerated since June 2010. On August 30, 2010, B.S.G.'s mother, J.H., voluntarily made an identified surrender of her parental rights in favor of B.S.G.'s foster mother, F.M.1 For the reasons that follow, we affirm.

I.

Defendant and J.H. have three children together, five-year-old G.G., Jr. (Junior), four-year-old R.N.G., and three-year-old B.S.G., whose guardianship is the subject of this appeal. On June 4, 2009, both parents voluntarily agreed to an identified surrender of their parental rights as to Junior and R.N.G.

DYFS's involvement with defendant began in September 2005, nearly three years before B.S.G.'s birth. After discovering one-month-old D.G. living with defendant and J.H. in an unfurnished apartment with no food or refrigeration, DYFS removed the child.2

In September 2006, DYFS arranged for defendant to begin counseling at Family Connections. On June 4, 2007, however, defendant threatened a staff member with gang violence. As a result of the incident, Family Connections prohibited defendant from returning to its premises.

In early January 2008, defendant threatened J.H. and Junior with a machete before kidnapping Junior for three days. As a result, defendant was arrested and later pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; third-degree making terroristic threats, N.J.S.A. 2C:12-3(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).3 Defendant was sentenced to three years' probation. A medical examination following the incident found Junior malnourished and underweight.

B.S.G. was born on August 14, 2008. Upon J.H.'s discharge from the hospital, she left B.S.G. in the care of a neighbor in an effort to prevent DYFS from removing the child.4 DYFS workers and the police finally located B.S.G. on August 26, 2008. That same day, DYFS removed the child and placed her with F.M. B.S.G remains in that placement and F.M. wants to adopt her.

Following removal, DYFS provided defendant with various services, including supervised visitation, parenting classes, anger management classes, and psychological evaluations. Defendant's attendance at visitation was sporadic, and when he did attend he was often late. His participation in the other services was likewise inconsistent.

On April 19, 2009, defendant was arrested and later pled guilty to fourth-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(3); and third-degree making terroristic threats, N.J.S.A. 2C:12-3(b). Defendant has been incarcerated since June 2010, when he was arrested for violating probation. He is expected to be eligible for parole in the next six months.

At trial, DYFS presented testimony from Dr. Mark Singer, a psychologist who examined defendant, and Evalina Hinton, a DYFS caseworker. At the conclusion of the trial, the court issued an oral ruling terminating defendant's parental rights, and finding that DYFS had discharged its burden to present clear and convincing evidence satisfying the four-prong "best interests of the child" test. See N.J.S.A. 30:4C-15.1(a).

On appeal, defendant presents the following arguments:

 

I. THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

 

A. G.G. HAS NEVER HARMED B.S.G. IN ANY WAY AND INCARCERATION DOES NOT CONSTITUTE PER SE HARM TO THE CHILD OR GIVE RISE TO A PRESUMPTION OF PARENTAL UNFITNESS.

 

B. THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO G.G. WAS ERRONEOUS.

 

C. TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD.

II.

A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). This constitutional protection is tempered, however, by the state's responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The best interests of the child standard set forth in N.J.S.A. 30:4C-15.1(a) is an effort to balance these interests. Ibid. This statute provides that DYFS shall petition the court for termination of parental rights if the following four standards are met:

(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 division 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).]

III.

The first prong of the best interests test requires that DYFS demonstrate harm to the child. K.H.O., supra, 161 N.J. at 348. Although a single harm may suffice, the focus is on the cumulative effect of harm over time caused by the parent. Ibid.

Defendant contends the trial court erroneously presumed defendant unfit to act as B.S.G.'s parent based upon defendant's incarcerated status. Such a conclusion, defendant argues, is improper under the Supreme Court's holding in L.A.S., supra, 134 N.J. at 135.

The record does not support this contention. The trial court weighed defendant's incarceration as one of many factors in determining whether the child's safety, health or development has been endangered by the parental relationship. N.J.S.A. 30:4C-15.1(a). Contrary to defendant's argument, the Court in L.A.S. held that a parent's incarceration, while not dispositive of the issue, is a relevant factor in determining whether parental rights may be terminated. L.A.S., supra, 134 N.J. at 135. In its oral ruling, the trial court noted:

[Defendant's] involvement in criminality and concomitant imprisonment has rendered him unable to parent B.S.G. He has never assumed any of the responsibilities for parenting his daughter. There is no evidence that he's ever supported her financially or emotionally.

 

His continuing and protracted absences from her life during his spates of incarceration have deprived B.S.G. of the nurturing and support that is commensurate with fatherhood.

 

Thus, the trial court considered the reasons for defendant's incarceration, and its effects, rather than merely the incarceration itself, in making its determination.

The court also noted defendant's 2009 convictions for aggravated assault with a deadly weapon and threatening to kill. The court did not mention defendant's 2008 convictions for threatening violence, endangering the welfare of a child, and resisting arrest, although this is further evidence of defendant's pattern of violence and aggression.

It is therefore clear the court did not rely exclusively on defendant's incarcerated status in concluding that DYFS had sustained its burden with regard to the first element of the best interests test. There was clear and convincing evidence in the record to support the finding that B.S.G.'s health and safety has been and will continue to be endangered by her relationship with defendant.

The second prong of the best interests test addresses the parent's unwillingness and inability to eliminate the circumstances causing harm to the child. N.J.S.A. 30:4C-15.1(a)(2). This element reinforces the first element concerning harm to the child and looks to the parent's ability and desire to overcome the obstacles that prevent him or her from providing the child with a safe and stable environment. K.H.O., supra, 161 N.J. at 349. The focus of this element is not the fitness of the biological parent, but whether he or she can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

The trial court found defendant's incarceration and criminal disposition weighed against the "child's need for permanency and stability," and considered whether continuing the parental relationship will satisfy those needs. The court noted that defendant's incarceration "has prevented him from sharing the daily responsibilities of raising a child." Moreover, Dr. Singer testified that defendant "still remains a risk of harm to his child and would still likely continue to have difficulty creating the stability and security that B.S.G. would require."

Dr. Singer further testified that defendant's ability to comply with societal limits has deteriorated since 2005, while his criminal activity has simultaneously increased. The essence of Dr. Singer's testimony was that although defendant has made limited progress in some areas, he has not demonstrated that he is able or willing to abandon his pattern of violence, aggression, and criminality.

Evalina Hinton, the DYFS caseworker, testified to defendant's failure to utilize various services provided to him by DYFS, including individual therapy, anger management classes, and parenting skills. To his credit, defendant did utilize services available to him in prison, including enrolling in anger management, parenting skills, and employment skills programs. Defendant has not, however, established that he is willing and able to provide B.S.G. with a stable environment.

The court did not err in determining that DYFS satisfied the second prong of the test. There was clear and convincing evidence to support the finding that defendant is unable to eliminate the harm to the child or to provide her with a safe and stable home. K.H.O., supra, 161 N.J. at 348-349.

The third prong of the best interests test requires that DYFS make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home" and that the court "consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Regarding this element, defendant focuses his argument on the sufficiency of the services provided, and does not contend that the court failed to consider alternatives to termination.

What constitute "reasonable efforts" varies from case to case, In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999), but the term is statutorily defined as:

attempts . . . to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

 

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

 

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

 

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 

(4) facilitating appropriate visitation.

 

[N.J.S.A. 30:4C-15.1(c).]

 

This element requires that DYFS

encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family. DYFS must promote and assist in visitation and keep the parent informed of the child's progress in foster care. DYFS should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, to become an effective caretaker and regain custody of his or her children.

 

[D.M.H., supra, 161 N.J. at 390.]

 

In its decision, the trial court found that DYFS had provided "numerous services, including a substance abuse assessment, visitation, individual therapy, parenting skills classes, anger management classes, couples counseling, [and] psychological evaluations." As to the rendition of services to defendant during his incarceration, the court noted that "[defendant]'s most recent imprisonment is a direct result of a choice, the choice by [defendant] to violate the terms and conditions that would have permitted him to remain in the community after the original imposition of [the] sentence."

Finally, defendant argues that DYFS's failure to conduct a bonding evaluation should preclude a finding that DYFS made the requisite reasonable efforts. This deficiency is due, however, to defendant's failure to attend three scheduled evaluations. Accordingly, defendant's argument is without merit.

The court did not err in determining that DYFS had satisfied the third prong of the test. There was clear and convincing evidence to support the finding that DYFS made reasonable efforts to help defendant remedy his circumstances.

The fourth prong of the test requires a determination that terminating defendant's parental rights will not cause more harm than good. N.J.S.A. 30:4C-15.1(a)(4). This element requires the court to assess B.S.G.'s relationships with each of her biological and foster parents. K.H.O., supra, 161 N.J. at 355. A mere showing that the child would be "better off" with an adoptive parent is not sufficient. In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999). Nor will a showing of a healthy and loving relationship between the child and foster parent suffice. J.C., supra, 129 N.J. at 19. A determination under this prong requires "expert inquiry specifically directed to the strength of each relationship." K.H.O., supra, 161 N.J. at 355 (citation and internal quotation marks omitted).

In support of his argument, defendant points to the lack of a bonding evaluation of defendant with B.S.G. This deficiency required Dr. Singer to testify on a hypothetical basis about B.S.G.'s relationship with defendant. Defendant argues that given the absence of testimony regarding actual observations, the trial court's determination that termination will not cause more harm than good is not supported by the evidence.

Certainly, a bonding evaluation would have provided a stronger basis for Dr. Singer's opinions; nevertheless, given that DYFS scheduled three bonding evaluations providing bus passes for each session and that defendant failed to attend all three, there is no basis for defendant to fault DYFS for this deficiency. See In re Guardianship of C.S., Jr., 405 N.J. Super. 418, 441 (App. Div. 2009) (noting that "DYFS's efforts to provide services is not measured by their success") (citation and internal quotation marks omitted).

Moreover, the trial court appropriately considered Dr. Singer's testimony as to the harm that would likely be caused by the severing of B.S.G.'s relationship with F.M. In its decision, the trial court noted:

Dr. Singer testified that B.S.G. sought security and comfort from her foster mother and that that foster mother is B.S.G.'s psychological parent. He further testified that by the time of trial, B.S.G.'s positive attachment to her foster mother's home would cause her significant and lasting harm.

 

Dr. Singer testified that B.S.G. likely does not have a bond with [defendant]. This is because [defendant] last saw B.S.G. possibly in February of 2010. And because B.S.G. likely does not remember her sporadic interactions with [defendant] when he was not in custody.

 

As to any harm that may be caused by termination of defendant's parental rights, Dr. Singer testified at trial:

[C]onsidering the lack of contact [defendant] has had with B.S.G., it would be very unlikely that B.S.G. would be able to recall any conscious memories of [defendant]. I'm not saying that she may not have some familiarity and recognize [defendant], that's one of our primal behaviors that we're born with. But in terms of that depth of familiarity, that depth of attachment, unfortunately because of the discontinuity in visits, it would just not likely be there.

 

. . . .

 

What I can say is that based upon the information that I have, including B.S.G.'s age and her experiences in life, it's not probable that any significant and enduring harm would come to the child because the child has not likely internalized a meaningful relationship with her father.

 

The doctor also noted that because B.S.G. has been with F.M. since she was twelve days old, she knows no other parental figure. Continuing the relationship with F.M., Dr. Singer explained, will provide B.S.G. with a "stable, secure, nurturing relationship."

Dr. Singer's opinions provided a sufficient basis for the trial court to assess the likely consequences that would result were defendant's parental rights terminated. The record thus contains clear and convincing evidence to support the trial court's finding that termination of defendant's parental rights would not cause more harm than good. Accordingly, the court did not err in finding that DYFS satisfied the fourth prong of the test.

We are satisfied the record fully supports the decision to terminate defendant's parental rights. The court applied the

correct legal standards to its factual conclusions. As there is no basis for disturbing the court's findings, we affirm

substantially for the reasons set forth in Judge Leath's comprehensive and insightful April 7, 2011 oral opinion.

Affirmed.

1 These initials are fictitious.

2 Although J.H. is D.G.'s biological mother, defendant is not the child's biological father.

3 J.H. also filed a domestic violence complaint on January 5, 2008. On January 16, 2008, a final restraining order was entered prohibiting defendant from having contact with J.H.

4 At that point, DYFS had custody of J.H.'s other children. Her parental rights had been involuntarily terminated as to D.G. on April 3, 2008.