NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.S.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.S.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.R.S.,

a Minor.

________________________________________________________________

November 19, 2013

 

Submitted October 9, 2013 Decided

 

Before Judges Sapp-Peterson and Maven.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-131-12.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.R.S., a minor (David Valentin, Assistant Deputy Public Defender, of counsel and on the brief).

 

PER CURIAM

Defendant (Joseph),1 the biological father of J.R.S. (John), appeals from the trial court order terminating his parental rights and granting guardianship to the Division of Child Protection and Permanency (the Division)2 to secure the child s adoption.

On appeal, Joseph argues the evidence was insufficient to satisfy that the statutory requirements of N.J.S.A. 30:4C-15.1a. The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.

Based on our review of the record and applicable law, we are satisfied that the Division proved by clear and convincing evidence the requisite statutory factors required to terminate Joseph's parental rights. Accordingly, we affirm substantially for the reasons expressed by Judge Bernadette N. DeCastro, in her thorough and well-reasoned February 6, 2013 written opinion.

I.

We briefly summarize the relevant facts, drawn from the record established in the trial court. John was born to J.S. (Jennifer)3 and Joseph on May 28, 2003. Joseph and Jennifer were never married. When John was born, Joseph was incarcerated after being convicted of illegal sexual contact with Jennifer's nine-year-old daughter, Yasmeena. He was sentenced to two years imprisonment, followed by a five-year suspended sentence and ten years' probation with the condition that he not have unsupervised contact with minors. On May 11, 2006, Joseph violated probation by having unsupervised contact with Kyle, and was sentenced to eighteen months imprisonment.

In 2008, Joseph was arrested for an act of domestic violence against Jennifer. He pled guilty to third-degree assault and third-degree strangulation, and was sentenced to an aggregate sentence of two and one-half year's suspended sentence and three years of probation. A domestic violence restraining order against Joseph required him to attend anger management counseling. The terms of Joseph's probation prohibited contact with Jennifer and unsupervised visitation with John.

Jennifer and John moved to New Jersey from Connecticut in 2008.4 The Division received a referral from the Connecticut Department of Children and Families (DCF) reporting that Jennifer recently relocated to New Jersey and had a history with DCF. DCF reported their involvement began with the June 2003 referral involving Joseph's sexual assault of Yasmeena. Subsequent referrals regarding Jennifer followed, permitting Joseph, a "convicted sexual rapist," to have unsupervised contact with her children in 2006; testing positive for cocaine and allowing John to handle rat poison in 2007; and being admitted to the hospital because of an intentional overdose and having a positive urine screen for cocaine in 2008.

The Division opened an investigation in September 2008. During an interview with Jennifer, the Division learned she had substantial untreated mental health and substance abuse issues. The Division determined John was unsafe in Jennifer's care and executed an emergency removal, placing John in his first resource home. Thereafter, the Division petitioned for and was granted care, custody, and supervision of John based on allegations of neglect. Despite being notified of the hearing, Joseph failed to appear.

On February 18, 2009, Joseph's Connecticut probation officer informed the Division that Joseph could have visitation with John, supervised by a Division employee aware of the nature of Joseph's conviction. The Division then notified Joseph he could begin supervised visitation with John.

Over the next several months, while the Division worked with Jennifer towards a plan for reunification, Joseph exercised supervised visits with John after court hearings. At a September 9, 2009 permanency hearing, the court accepted the Division's plan for termination of Jennifer and Joseph's parental rights followed by adoption, to take place within six months. With regard to Joseph, the Division moved to terminate his parental rights based on his inability to care for John.

That same day, Joseph had a supervised visit with John. During the visit, Joseph informed the Division he was unemployed and, because of limited finances, he did not know when he could next visit John. Later that month, Joseph informed the Division "he intends . . . [for John] to live with his grandmother in Puerto Rico[,] as he cannot care for [him]." Joseph further stated he would accept a surrender of his parental rights to either allow his grandmother to adopt John, since it meant John would remain in the family, or to a resource family, but only as "a last resort." Additionally, Joseph informed the Division it would be difficult for him to visit John because of his new work and school schedule.

On November 4, 2009, the Division filed a Complaint for Guardianship seeking termination of Jennifer and Joseph's parental rights. Frank Dyer, Ph.D., conducted the required psychological evaluation of Joseph on March 11, 2010. Joseph refused to discuss the 2003 incident involving Yasmeena. He also expressed a preference that John be placed with maternal grandparents, but if that did not occur, "leaving [John] with the foster family where he is currently [living] would be the best thing." Dr. Dyer diagnosed Joseph with unspecified personality disorder with anti-social features. Based on his evaluation, Dr. Dyer recommended the Division "not consider [Joseph] as a viable candidate for custody of [John]."

On February 28, 2011, the trial judge approved the Division's modified permanency plan for John's adoption. John was doing well in his placement and his resource family informed the Division they wished to adopt him. Also around that time, Joseph neither made himself available to the Division, nor visited John for several months.

The Division learned Joseph was incarcerated in Connecticut on a probation violation for inappropriately touching his girlfriend's eleven-year-old daughter. He had also violated several conditions of his probation, including not living at his approved residence, engaging in unsupervised contact with a minor, and using a computer. Joseph had been sentenced to four months imprisonment, followed by two and one-half year's suspended sentence and seven months of probation. On August 12, 2011, Joseph informed the Division he had been released from prison but was homeless and unemployed.

Dr. Dyer conducted a bonding assessment between John and his resource parents on July 27, 2011. His resource mother described John as usually "well[-]behaved . . . but when he visits members of his family, he will come back defiant and angry immediately after a visit." She also commented that "[John] is worse after a visit with his father than he is with his mother." John identified his resource parents as "Mom" and "Dad." When asked with whom he would live if he could "choose anyone in the world," he said Jennifer. Dr. Dyer concluded John had formed a bond with his resource parents and was "doing well in that placement, with no reported problems except for acting out after visits with his birth parents." Dr. Dyer recommended the Division pursue a goal of adoption by his resource parents.

In September 2011, the Connecticut probation officer informed the Division that Joseph was still homeless and was unsuccessfully discharged from sex offender treatment. The Division also learned Joseph intentionally misrepresented that he could have unsupervised contact with John and that John was permitted to live with him. A subsequent DCF report revealed that Joseph would remain on probation until March 2012.

Dr. Dyer updated Joseph's psychological evaluation on October 17, 2011. Dr. Dyer diagnosed Joseph with pedophilia and antisocial personality disorder, which he opined "are extremely negative with respect to parenting capacity." He explained:

[Joseph's] antisocial personality disorder predicts irresponsibility, evasiveness, exploitiveness, and a disregard of rules and laws. This is the opposite of what would be expected from someone who proposes to provide consistent nurture[,] structure, guidance, material comforts, and positive role modeling for a child. Given [Joseph's] poor response to the considerable therapy that he has had and his lack of positive change in response to incarceration and probation supervision, his prognosis for acquiring adequate parenting capacity is regarded as very poor.

 

With respect to the bonding evaluation between John and Joseph, Dr. Dyer reported that John appeared happy to see Joseph; however, his relationship with his father "does not appear to be as strong as his tie to [Jennifer]." Based on his observations, Dr. Dyer opined that Joseph was not capable of appropriately caring for John, and that the child would be placed at a risk of harm if reunited with him.

At an October 25, 2011 guardianship hearing, the trial judge determined the Division failed to establish the elements of the best interest standard for termination of parental rights. The judge dismissed the guardianship litigation and reinstated the protective services litigation and services to Jennifer. Thereafter, Jennifer continued to abuse pain medication and refused to attend inpatient substance abuse treatment. Also during this time, the Division advised Joseph that his sister was not approved as a placement for John. With no other plan for his son, Joseph informed the caseworker he did not have the resources and could not take care of John.

The Division filed another verified complaint for custody on February 9, 2012, and an order to show cause on February 14, 2012. Relying on Dr. Dyer's report, the trial judge entered a permanency order approving the Division's plan to terminate Joseph's and Jennifer's parental rights. On March 12, 2012, Joseph's probation ended, and he moved in with his girlfriend and her three children. At that time, Joseph indicated he wanted John to be returned to his care.

In March 2012, Dr. Dyer conducted a second bonding evaluation between John and his resource parents, as well as a bonding evaluation between John and his maternal grandmother.5 In his report, Dr. Dyer indicated the resource mother's concern that John exhibits negative behavior after seeing Joseph on the few occasions that he visited. She also stated John had a neutral reaction to his mother relocating to Puerto Rico. She also noted John was "well adapted" to the resource home, and expressed John's need for permanency. With respect to John's resource parents, Dr. Dyer concluded "[John] has formed a very positive emotional tie to [them]." Moreover, John appeared to "be flourishing in this placement."

With regard to other potential caretakers, Dr. Dyer did not have any particular concerns with the maternal grandmother's ability to parent John. He noted that the paternal aunt's failure to attend her scheduled evaluation signaled her lack of interest in caring for John. As for Joseph, Dr. Dyer determined John "appears to have a strong positive emotional tie to his father; however, because of the infrequency of the contacts, partially due to [Joseph's] incarcerations, . . . it is doubtful that [John] has a genuine attachment to his father." Further, he concluded a complete cessation of contact with Joseph would not harm John.

On December 3, 2012, Jennifer died of a heart attack in Puerto Rico. The court conducted the guardianship trial against Joseph in January 2013. The State offered the testimony of its caseworker, Natalia Aponte, and its expert, Dr. Dyer. Joseph testified on his own behalf. After observing the witnesses' testimony, examining exhibits entered into evidence, and hearing counsel's arguments, Judge DeCastro found the Division had satisfied, by clear and convincing evidence, the four-prong test for termination of parental rights as codified in N.J.S.A. 30:4C-15.1. This appeal ensued.

II.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (alteration in original). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child." Ibid. In A.W., supra, 103 N.J. at 604-11, the Supreme Court identified four factors to analyze when deciding whether the termination of parental rights is in a child's best interest. The Legislature codified these factors as follows:

(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.

[N.J.S.A. 30:4C-15.1a.]

These criteria are neither separate nor discrete. K.H.O.,supra, 161 N.J. at 348. Rather, they "overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

Under the "best interests of the child" standard, parental rights may be terminated upon the Division establishing each enumerated factor by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

The standards governing the termination of parental rights are strict, and the scope of our review is especially limited. Id. at 347; N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). A trial judge's factual findings should not "be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

III.

Combining the first and second statutory prongs, we reject Joseph's claims that the Division failed to prove he caused "conduct-based" harm to John, and was unfit to care for him. SeeN.J.S.A.30:4C-15.1(a)(1) to(2). Underprong one of the best-interests test, the Division must show that the alleged harm "threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352; seeN.J.S.A. 30:4C-15.1(a)(1). With respect to this element of the best interest standard, the alleged "injury need not be physical. Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Furthermore, a parent's "inability to take custody of and care for [his] child and to provide a safe and stable home at any time since the child's birth . . . demonstrates parental unfitness and constitutes a continuing harm to the child under the [second prong] N.J.S.A.30:4C-15.1(a)(2)." K.H.O., supra, 161 N.J. at 353-54.

The record clearly supports the trial judge's findings that Joseph harmed John because he was unable or unwilling to perform his parental duties. Joseph had been absent from John's life due to incarceration March 2003 through March 2005; May 2006 through May 2007; September 2008 through December 2008; and again from April 2011 through August 2011. In addition, his probation extended from September 2008 through March 2012, and permitted only supervised contact with John. Thus, at the time of trial, defendant had been incarcerated or unavailable for nearly forty percent of John's life.

Moreover, "harms attributable to the biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger bonding relationship to foster parents, which if severed[,] could cause the child profound harm." K.H.O., supra, 161 N.J.at 352 (quoting N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996)) (internal quotation marks omitted). Dr. Dyer testified that John had bonded to his resource family and would suffer serious, long-term psychological harm if removed from the foster home.

As to the second prong, we examine the Family Part judge's determination as to "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348 (citations omitted). The relevant inquiry under the second prong is "whether the parent can become fit in time to meet the needs of the child." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (citation omitted), certif. denied, N.J. Dep't. of Children and Family v. K.G., 205 N.J. 519 (2011).

Joseph acknowledged his inability to parent or care for John. His sexual compulsion, complicated by probation violations, prolonged the prohibition against contact with minors and prevented his reunification with John. We are convinced, therefore, that it would not be in John's best interest to prolong the resolution of his status by indefinitely extending his current foster care placement. See N.J.S.A. 30:4C-53.1d; B.G.S., supra, 291 N.J. Super. at 592 (children should be placed in "stable and permanent homes" instead of in indefinite long-term foster care). The record amply demonstrates that John needs stability and relief from the anxiety associated with the recent and sudden death of his mother and lack of permanency. The judge appropriately concluded that further delay would ultimately harm John. We are satisfied that the record and the applicable law supports the judge's finding that the second prong was satisfied by clear and convincing evidence.

The third prong of the best interests test requires the Division to undertake reasonable efforts to reunite the family. In re Guardianship of D.M.H., 161 N.J. 365, 386-87 (1999). "That prong of the standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted). "Like considerations of parental fitness, an evaluation of the efforts undertaken by [the Division] to reunite a particular family must be done on an individualized basis." D.M.H., supra, 161 N.J. at 390. Importantly, however, the Division's efforts need not be successful. Id. at 393.

Judge DeCastro found the Division had made efforts to provide services to Joseph, including supervised visitation, State subsidized travel, psychological evaluations, and bonding assessments. Further, the judge opined since defendant was precluded from having custody or unsupervised visits due to his probationary restrictions, "[t]here was little else left that the Division could ... d[o]" to foster a father-son relationship between Joseph and John without Joseph's own committed participation.

The third prong also requires the court to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). Such alternatives may include placement of the child with a relative caretaker, which would "obviate the need for termination of parental rights and adoption." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488-89 (App. Div. 2012).

Judge DeCastro credited Dr. Dyer's opinion that John's closest bond was with his mother, followed by his foster parents, the only other viable and stable relationship he had. Dr. Dyer concluded that Joseph would not be a viable option for John. After Jennifer died, Judge DeCastro determined there were no alternatives other than termination of parental rights. The Division considered the paternal grandmother, paternal aunt, an adult sister, and was still evaluating the maternal grandmother in Puerto Rico at the time of trial. The record substantially supported Judge DeCastro's determination that the Division did what it could to secure an alternative to termination.

The fourth prong of the best interests test requires a determination that termination of parental rights will not do more harm than good to the child. K.H.O., supra, 161 N.J. at 354-55 (citing N.J.S.A. 30:4C-15.1(a)(4)). "The question to be addressed . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." Id. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)[.]" Id. at 363.

During his testimony, Dr. Dyer stated:

I understand that [Joseph] does have an attachment to his son. . . . That it makes him happy when [John] recognizes him and expresses pleasure in seeing him.

 

But the problem that all of us are involved in is that of assuring some set of circumstances, permanent circumstances for [John] that will protect him. That will provide appropriate structure, [nurture], guidance, positive role modeling, material comforts[,] and everything else that goes into adequate parenting to help this child who's about to enter the period of adolescence withstand everything that adolescence is going to throw at him. And to overcome everything that he has experienced in the way of disruptions, losing his mother. The disruption to the family caused by [Joseph's] sexual molestation of his sister. And everything else that [John] has undergone.

 

We are trying to craft a solution to help him and a solution involves permanency. From that perspective[,] I would say that [Joseph] is not qualified to provide all of those factors, all of those supports that [John] is going to need. So that's the critical difference.

 

Judge DeCastro credited the testimonies of the caseworker and Dr. Dyer stating:

In this case, -- the caseworker testified that [John] is doing well in the care of his foster parents. He's been with them for four[-]and[-]a[-]half years. Dr. Dyer testified [John] looked to his foster parents as reliable and benevolent figures. The interaction was also positive.

 

[John] was comfortable and secure with them. Dr. Dyer testified that permanency is important to this child who has recently lost his mother. Permanency overshadows continued contact with [Joseph].

 

Like Judge DeCastro, we are convinced that Joseph is unable to provide the stable and permanent home that John so desperately needs. We therefore conclude there is sufficient evidence in the record to support Judge DeCastro's finding that termination of Joseph's parental rights to John will not cause the child more harm than good.

Affirmed.

 

1 In light of the sensitive issues involved, we refer to the parties by fictitious names. R. 1:38-3(d).

2 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families. The Division of Youth and Family Services was renamed and is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10b).

3 Jennifer passed away in December 2012 on the eve of trial and the litigation continued against Joseph. We refer to Jennifer only in context of the circumstances involving Joseph.

4 In Connecticut, Jennifer lived with Joseph, John, and her four other children, Katrina, born in 1988; Mia, born in 1990; Kyle, born in 1991; and Yasmeena, born in 1993. Katrina, Mia, and Kyle had all reached the age of majority by the time of the guardianship trial. Yasmeena is in the custody of her maternal grandmother in Puerto Rico.

5 Dr. Dyer conducted the bonding evaluation between John and his maternal grandmother because Jennifer intended to relocate to Puerto Rico to be closer to her family.