NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2375-11T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

S.M.,

Defendant-Appellant.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.D., Minor.

____________________________

April 15, 2013

Submitted March 20, 2013 - Decided

Before Judges Grall, Simonelli and Accurso.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-35-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian Donnelly, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mara Spiegeland, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondent M.D. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Defendant S.M., the biological father of M.D., born in October 2004, appeals from the December 8, 2011 Family Part judgment, which terminated his parental rights to the child. On appeal defendant contends that plaintiff New Jersey Division of Youth and Family Services (the Division) failed to clearly and convincingly establish the four prongs of N.J.S.A. 30:4C-15.1a. We disagree and affirm.

M.D.'s biological mother, J.D., had two other children, N.G., born in February 2003, and S.D., born in March 2006.2 J.D. first became involved with the Division shortly after N.G.'s birth in 2003, as a result of her drug use and unstable housing. In March 2005, the Division became involved with defendant and J.D. as a result of J.D.'s continued drug use. The Division removed M.D. and his siblings from the home, and placed them into foster care, where they remained for several months. There were two failed reunifications thereafter due to J.D.'s unresolved drug addiction. In April 2008, M.D. was placed with his foster mother, who wants to adopt him.3

During defendant's nearly seven-year involvement with the Division,4 his only plan was to live with J.D. and jointly raise the children with her after she completed services. He never offered himself as a sole placement option, nor did he offer any other alternative placement options.

In addition, defendant was non-compliant with services, refused to admit to his drug use and submit to a substance abuse evaluation,5 and failed to complete court-ordered substance abuse treatment. He also failed to attend numerous court hearings between November 2008 and April 2009.

Moreover, defendant was incarcerated as a result of his conviction for possession of a controlled dangerous substance. He was also arrested several times for assault, including assaulting J.D. during a domestic violence incident reported to the police. Since April 2010, defendant, who is not a United States citizen,has been detained by U.S. Immigration and Customs Enforcement (ICE) pending deportation. He did not contact the Division or his court-appointed attorney during his detention.

In an October 2008 psychological evaluation, Roger T. Barr, Ed.D., expressed his concerns about defendant's failure to accurately assess the gravity of J.D.'s substance abuse and its impact on the children. Defendant also did not comprehend the gravity of M.D.'s behavioral problems and special needs.6

In a November 2009 psychological evaluation, Dr. James Loving, Psy.D., expressed his concerns about defendant's failure to comprehend the seriousness of J.D.'s drug abuse and its impact on the children, as well as defendant's failure to admit to his own drug use and comprehend M.D.'s developmental and behavioral issues. The doctor emphasized that defendant had a "poor prognosis for cooperating with any needed services[,]" and concluded that defendant "cannot be seen as a safe reunification option now or in the foreseeable future."

The Division's expert, JoAnne Gonzalez, Ph.D., evaluated defendant prior to the trial. The doctor noted that defendant lacked an understanding of normal child growth and development, did not understand why the children were in foster placement, never believed J.D.'s drug use was a problem, viewed J.D. as capable of caring for the children, and failed to understand that his responsibilities included protecting the children from J.D.'s drug abuse and the behaviors associated therewith. The doctor testified that defendant knew J.D. was using drugs, did not understand the impact it had on the children, and failed to protect the children from that situation.

Dr. Gonzalez testified that defendant eventually admitted his own drug use, did not consider it a problem, denied it affected his judgment, and failed to see the consequences it had on the children's lives when they were in his care. Defendant also did not understand M.D.'s specific needs, believed the child was not properly diagnosed, and would decline help for the child. Defendant showed very low empathy for M.D.'s developmental needs, and did not know and was not interested in learning appropriate techniques to deal with those needs. Dr. Gonzalez also found that defendant failed to accept responsibility for his own behavior and blamed others for his situation. She concluded that defendant could not care for M.D. or provide a safe and stable home for the child.

Dr. Gonzalez conducted a bonding evaluation between M.D. and defendant, and between M.D. and his foster mother. The doctor found that M.D. was not bonded to defendant, had no real emotional connection to him, and related to him as a stranger. Dr. Gonzalez concluded that M.D. would suffer no negative effect if permanently separated from defendant or emotional harm from the termination of defendant's parental rights, and will require no services to help him deal with the separation.

Dr. Gonzalez reached an entirely different conclusion as to M.D.'s foster mother. She found M.D. had a "very strong and secure bond" with his foster mother, considered her his "mama," and that she had been his primary caretaker and provided him stability. The doctor concluded that M.D. would suffer "serious emotional damage" if separated from his foster mother, which defendant could not ameliorate.

In a December 8, 2011 oral decision, the trial judge made extensive factual findings and described the applicability of those findings to each of the four prongs of N.J.S.A. 30:4C-15.1a. Applying the clear and convincing proof standard, the judge concluded that the Division met all four prongs of N.J.S.A. 30:4C-15.1a.

As to the first and second prongs, the judge found that M.D. suffered two failed reunifications; defendant never offered himself as a placement option for M.D. or provided M.D. with emotional, psychological, or financial support; defendant never provided M.D. a safe and stable home and could not do so in the foreseeable future; and separating M.D. from his foster mother would cause the child serious and enduring psychological and emotional harm. The judge emphasized that defendant "hasn't had but [an] acquaintance relationship with this child."

As to the third prong, the judge found that the Division provided services to defendant, including substance abuse, psychological and bonding evaluations, couple's counseling, and supervised visitation; however, defendant never took advantage of those services. The judge concluded the Division made reasonable efforts to help defendant correct the circumstances which led to M.D.'s placement outside the home. The judge also concluded the Division considered Kinship Legal Guardianship (KLG) as an alternative to termination of parental rights, but J.D. rejected KLG and defendant offered no substitute for KLG, and no family member came forward.

As to the fourth prong, the judge found that defendant "really hasn't been there for [M.D.] for any of the seven years of [M.D.'s] life." The judge concluded that, based on the undisputed expert evidence, termination of defendant's parental rights will not do M.D. more harm than good, and adoption by the foster mother was in M.D.'s best interests. This appeal followed.

On appeal, defendant contends there was no evidence that a continued parental relationship would endanger M.D.'s safety, health or development; he is willing and able to eliminate any harm facing M.D. and provide the child safe and secure housing; the Division failed to make reasonable efforts to help him during his incarceration; and termination of his parental rights will do more harm than good. Defendant also contends he was denied procedural due process because reasonable efforts were not made to arrange his attendance at hearings. None of these contentions has any merit.

Our Supreme Court has established the standard of review in parental termination cases:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.

[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (internal quotation marks and citations omitted).]

"The focus of a termination-of-parental-rights hearing is the best interests of the child." Id. at 447. To justify termination of parental rights, the Division must establish by clear and convincing evidence that:

(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.

[Id. at 448 (quoting N.J.S.A. 30:4C-15.1a).]

These "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

The first prong of the best interests test requires the Division to show that "the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" Id. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

A child's unfulfilled need for a permanent home is a harm in itself. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996). Likewise, a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. Compounding the harm is the parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child.]" Id. at 380. Such inaction "constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.

"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352; D.M.H., supra, 161 N.J. at 378-79. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The second prong may be satisfied

by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.

[K.H.O., supra, 161 N.J. at 353.]

"Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, 211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).

"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." Id. at 452 (quoting N.J.S.A. 30:4C-15.1a(3)). The emphasis on the third prong

is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.

[Ibid. (internal citation and quotations marks omitted).]

As part of the inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435.

The fourth prong seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). The fourth prong serves as a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must determine "whether . . . the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.

Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Thus, "'[t]o satisfy the fourth prong, the [Division] should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is [a] child's need for permanency. Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that the trial judge carefully reviewed the evidence presented, and thereafter concluded the Division had met by clear and convincing evidence all of the legal requirements for an order of guardianship. The judge's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1a, accords with applicable case law, and is amply supported by the record. However, we make the following brief comments.

Defendant had nearly seven years to address and resolve the issues that harmed M.D. and led to the child's placement into foster care. During defendant's time of non-incarceration, he did nothing to eliminate the harm or provide a safe, stable and permanent home for M.D., and there is no evidence defendant can do so in the foreseeable future. M.D. is securely bonded to his foster mother, with whom he has lived for the last five years, and will suffer irreparable harm if removed from her.

In addition, although defendant was not present for four of the seven pre-trial court hearings in this matter, his attorney appeared and amply represented him. In addition, except for the first and third days of the trial, when nothing concerning defendant occurred, defendant attended the trial and testified. Defendant, thus, was present during that part of the trial critical to him, and afforded the opportunity for meaningful participation in this matter. N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 465-66, 470 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Defendant and J.D. are also the biological parents of Ja.D., born in March 2009.

3 On October 20, 2011, J.D. gave an identified surrender of her parental rights to M.D. so that his foster mother could adopt him. The December 8, 2011 judgment terminated her parental rights to the child.

4 The guardianship trial began in October 2011.

5 Defendant finally had a substance abuse evaluation in July 2009.

6 M.D. has developmental delays and multiple behavioral problems, including aggression. He has been diagnosed with attention deficit hyperactivity disorder, takes medication, and receives special education services. He also wears glasses and a hearing aid as the result of partial vision and hearing loss.