NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3446-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

 

C.C.,

 

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.S.C., a minor.

_________________________________

February 20, 2013

 

Submitted January 16, 2013 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Nugent.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-0110-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Van Zwaren, Designated Counsel, on the brief).

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for J.S.C., a minor, (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

 

C.C. appeals from the trial court order terminating his parental rights to his daughter, J.S.C. (Jamie),2 born to him and E.C.3 on June 7, 2008, and granting guardianship to the Division of Youth and Family Services (Division). We affirm.

The Division first became involved with Jamie on October 14, 2008, when C.C. was arrested for distributing narcotics in front of his mother's residence where E.C., four-month-old Jamie, and two of Jamie's step-siblings, K.K., age five, and M.K., age three, also lived. The Division had previously received four referrals regarding E.C.'s family, including complaints of neglect of the children and allegations that E.C. and C.C. were peddling narcotics from the residence. Like all previous referrals, the report was unsubstantiated and the case was ultimately closed, as it was determined that E.C. was not implicated in the sale of drugs and was able to care for the children in C.C.'s absence.

Nonetheless, after C.C. was released on bail, he met with a Division caseworker, and arrangements were made for C.C. to attend a substance abuse evaluation. C.C. underwent a substance abuse evaluation in December 2008 and tested negative for illicit drugs. He was, however, recommended for Level I treatment at Meridian Behavioral Health. He did not attend the program. By early 2009, C.C. and E.C. were no longer living together. E.C. obtained sole custody of Jamie, and C.C. was only allowed supervised visits with Jamie.

On September 20, 2009, the Division received a referral regarding suspected substance abuse in E.C.'s home. Specifically, a psychiatric screener at Monmouth Medical Center reported that K.K., the biological father of Jamie's two siblings and with whom E.C. was living, admitted to using twenty bags of heroin each day. K.K. was diagnosed with depressive disorder and suicidal tendencies. When E.C. appeared in court to obtain sole custody of her two children fathered by K.K., she tested positive for opiates. Those two children, as well as Jamie, were deemed in substantial risk of harm. The Division effectuated an emergency DODD4 removal. Jamie was placed with E.C.'s cousin, T.P., with whom she has remained. She was not placed with C.C. due to his non-compliance with recommended drug treatment in the past, as well as his pending narcotics related charges. C.C. was also unemployed and living with his mother, who had earlier been ruled out as a placement option for Jamie.

Pursuant to the September 24, 2009 order granting the Division temporary custody of E.C.'s children, C.C. was allowed weekly two-hour supervised visits with Jamie and ordered to submit to a substance abuse evaluation and comply with "any and all recommendations." C.C. missed his first evaluation. On October 8, 2009, the court again ordered him to submit to an evaluation scheduled for the next day. Because C.C. failed to comply with the prior court order and also failed to appear at the October 8 hearing, the court temporarily suspended his visitation rights and entered a default against him. C.C. never attended the evaluation.

On November 7, 2009, C.C. was arrested and charged with first-degree robbery. He pled guilty to the offense and was sentenced to seven years imprisonment with an eighty-five percent period of parole ineligibility. His anticipated release date is November 7, 2015. At the fact-finding hearing, which C.C. attended, the court vacated the previously entered default but continued the restrictions on his visitation rights. Eight months later, E.C. was arrested on narcotics offenses.

On August 16, 2010, the court entered a permanency order approving the Division's plan to seek termination of E.C.'s and C.C.'s parental rights to Jamie followed by adoption of Jamie by her foster parents, T.P. and her husband, B.P. The court based its decision upon E.C.'s and C.C.'s incarceration and continued non-compliance with court-ordered rehabilitative services. On October 14, the return date of the Division's verified complaint seeking guardianship, the court continued its suspension of C.C.'s and E.C.'s visitation rights and ordered both parents to attend psychological, psychiatric, and bonding evaluations to be scheduled by the Division. The court also ordered the Division to assess Jamie's paternal aunt, K.P., as a possible resource placement. The court dismissed the abuse or neglect complaint in light of the guardianship petition.

The guardianship trial commenced on June 11, 2011, before Judge John R. Tassini. The Division presented two witnesses: Dr. Alan J. Lee, Psy.D., its expert, and Daria McCue, its caseworker on the file. Prior to trial, Dr. Lee conducted a bonding evaluation between Jamie and her foster parents, T.P. and B.P., between E.C. and Jamie, and individual psychological examinations of C.C. and E.C. Dr. Lee issued reports documenting his findings as to each evaluation.

The doctor testified that based upon his observations during the bonding evaluations, T.P. and B.P. were providing Jamie with support, guidance, nurturance, and consistency, such that Jamie had developed a significant and positive psychological attachment and bond with them. He opined that Jamie would suffer "enduring psychological harm" if their relationship were severed. He therefore endorsed T.P. and B.P.'s intention to adopt Jamie once she is legally free. He opined that given their personal struggles and parental deficits, Jamie's biological parents "would be in a particularly poor position to . . . ameliorate the expected psychological harm" to Jamie if she were returned to their custody.

Dr. Lee testified that C.C.'s personality defects directly impacted his parenting skills, especially since he is at a "heightened risk for criminal recidivism [and] substance abuse relapse[.]" He explained the prognosis for remediation of C.C.'s parental deficits is poor and therefore concluded that reunification with Jamie would be inappropriate. When asked if C.C.'s incarceration was the sole basis for his opinion, Dr. Lee testified that C.C.'s maladaptive personality traits, substance abuse issues and parental deficits exist independent of his incarceration.

On cross-examination, Dr. Lee reiterated that he did not recommend termination of C.C.'s parental rights solely based on his incarceration. He also stated that he did not conduct a bonding evaluation between C.C. and Jamie because the Division did not request the evaluation. He nonetheless opined that because C.C. had not seen Jamie since November of 2009 when she was fifteen months old, whatever bond existed between the two had likely diminished.

McCue testified the Division had multiple concerns about C.C.'s caretaking abilities beyond his incarceration. These included C.C.'s unrelenting substance abuse issues, reluctance to take advantage of rehabilitative services that had been offered to him in the past, the nature of the crimes underlying his current incarceration, and the likelihood that C.C. will struggle to obtain stable housing and employment upon release from prison in due time to independently care for Jamie.

McCue also testified the Division explored placement options for Jamie with C.C.'s sister, K.P., and his brother, J.C., and sister-in-law, K.C. When contacted, K.P. stated she was happy with Jamie's placement, as she lived on the same street as Jamie's current caretakers and had been able to visit her. McCue stated she received J.C.'s and K.C.'s contact information just days before the guardianship trial and was able to speak with K.C. McCue testified that after she explained that Jamie had been placed with her maternal aunt and uncle for over two years, K.C. said she did not wish to disrupt the placement, but offered to be considered as "backup" if the placement did not work. K.C. told McCue she was unaware Jamie had been living with relatives because C.C. told her Jamie was living with E.C.'s friend.

On cross-examination, McCue admitted C.C. had not seen his daughter since he was incarcerated pursuant to the court order that suspended his visitation rights. She claimed that but for the court order, C.C. would have been allowed to see Jamie "if it was ordered by the [c]ourt." She explained she did not send C.C. any photographs of Jamie or letters documenting her progress because "[n]othing changed in the life of his daughter that he needed to be updated [about]" and C.C. did not request same.

The defense presented J.C. and K.C. as rebuttal witnesses. K.C. disputed McCue's testimony that she only offered to be an alternate placement option. Rather, she claimed she only made that offer after McCue "made [her] believe" that neither she nor her husband were eligible to serve as Jamie's foster parents because Jamie had been successfully placed with other relatives. J.C. testified he was "looking out for [his] brother" but did not believe he was qualified to determine whether changing Jamie's placement would be in the child's best interest.

On cross-examination, K.C. admitted she had been aware, for the past two years, that Jamie was in foster care, yet she never contacted the Division to offer to care for her, notwithstanding her belief that Jamie was being placed with family friends, as opposed to her maternal relatives. She also admitted McCue did not actually tell her she was ineligible to be Jamie's foster parent. Rather, it was merely an impression she reached when McCue told her Jamie had been successfully placed.

C.C. testified on his own behalf. He testified that since his incarceration, he has taken G.E.D. tests, enrolled in a college-level fine arts course, successfully completed parenting classes, and participated in substance abuse treatment.

Following the conclusion of the testimony, Judge Tassini placed his findings of fact and conclusions of law on the record. He was satisfied the Division had proven all four prongs of the best interests test for termination of parental rights. He credited Dr. Lee's opinion that C.C. was not a viable caretaker for Jamie in the foreseeable future, while noting C.C.'s activities since incarceration.

Again, I congratulate [C.C.] for making efforts, but this is what I have from a qualified expert. He should be involved in a protracted period of individual counseling or psychotherapy, approved anger management, domestic violence programs, parenting education. He should attempt to obtain some vocational or occupational training to improve his chances for stable and gainful employment.

 

The most central and principal recommendation from Dr. Lee is for other permanency planning for the minor child besides reunification with the biological father.

He credited Dr. Lee's opinion that Jamie has formed a significant and positive attachment to T.P. and B.P. and that the "'most supported and appropriate permanency plan appears to be one where [Jamie] can remain . . . in the current caregivers' home of [B.P. and T.P.].'" By order of January 23, 2012, Judge Tassini terminated C.C.'s parental rights to Jamie. The present appeal followed.

On appeal, C.C. raises the following points for our consideration.

POINT I

 

THE DIVISION DID NOT MEET ITS BURDEN UNDER PRONG II AS C.C. DID ATTEMPT TO COMPLY WITH SERVICES AND ATTEMPTED TO REMEDIATE HARM TO THE CHILD.

 

POINT II

 

THE DIVISION DID NOT MEET[] ITS BURDEN UNDER PRONG III BY IMPROPERLY EXCLUDING POSSIBLE RELATIVE PLACEMENTS TO PREVENT THE TERMINATION OF PARENTAL RIGHTS.

I.

Although a parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected, this right is not absolute. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re K.H.O., 161 N.J.337, 346 (1999). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J.at 347 (citing In re J.C., 129 N.J.1, 10 (1992)).

In New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), the Supreme Court identified four factors that must be analyzed when deciding whether the termination of parental rights is in a child's best interest. Id. at 604-11. In accord with the standards articulated in A.W., 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 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-15.1a.]

 

The four factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Where the Division seeks termination of parental rights, it bears the burden of establishing each enumerated prong by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). In that vein, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347 (internal citations omitted). However, the best interests of the child remains the ultimate consideration. N.J.S.A. 30:4C-15. Because C.C.'s appeal is limited to challenging the trial court's findings as to the second and third prongs of the best interests test, we limit our discussion to these two prongs.

II.

A.

The second prong explores parental unfitness. K.H.O., supra, 161 N.J. at 348-49. The Division must prove, by clear and convincing evidence, that the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that endangered the child's health and development, or alternatively, that the parent has failed to provide a "safe and stable home for the child" and a "delay in permanency" will harm the child more. Id. at 348-49; N.J.S.A. 30:4C-15.1(a)(1). The paramount issue is "whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001).

C.C. contends the trial court erred in finding he failed to comply with services offered by the Division to ensure the remediation of harm to Jamie because the Division never made efforts to provide him with services after he was incarcerated. He urges, as we articulated in Division of Youth & Family Services v. S.A., 382 N.J. Super. 525, 535-536 (App. Div. 2006), the Division is not relieved of its obligation to provide reasonable services to incarcerated parents whose children have been placed in its temporary custody and whose parental rights have not been terminated.

Judge Tassini noted C.C.'s enrollment in educational and substance abuse treatment programs while incarcerated but ultimately relied upon Dr. Lee's assessment that C.C.'s prognosis for change is poor and that such change is unlikely to occur in time to avoid the harm Jamie would suffer if she remains without permanent placement. Judge Tassini also considered C.C.'s acknowledgment that he would have some difficulty in obtaining gainful employment and appropriate housing after he is released from prison.

More importantly, the court credited Dr. Lee's opinion, which he found credible and incorporated into his findings of fact, regarding the psychological bond between Jamie and her current caretakers and the substantial likelihood of harm to Jamie in the event that relationship is severed.

In arguing that the trial court failed to conduct a thorough evaluation of his parental fitness, C.C. relies on In re Adoption of Children by L.A.S., in which the Supreme Court held that a finding of parental unfitness requires "a very substantial neglect of parental duties, with no reasonable expectation of any reversal of that conduct in the future." 134 N.J. 127, 135 (1993) (citing Sorentino v. Children's Soc'y of Elizabeth, 74 N.J. 313, 322 (1977)). In addition, the State must show that "the parent's failings have actually harmed the child or imminently threaten such harm." Ibid. (citing A.W., supra, 103 N.J. at 616).

In L.A.S., the trial court terminated the defendant's parental rights based solely on the fact that he faced incarceration for at least thirty years. We remanded the matter, finding that while incarceration may be a factor indicative of abandonment, it may not be the sole factor considered in terminating an incarcerated parent's rights. Matter of L.A.S, 258 N.J. Super. 614, 621 (App. Div. 1992). The Supreme Court affirmed, noting "the need for children to have permanent and stable relationships with a nurturing parent figure." L.A.S., supra, 134 N.J. at 140. It also acknowledged that "the effect of a parent's incarceration on the permanency and stability of the child's life may be substantial. A parent's imprisonment can have a disruptive and destabilizing effect on the child's life." Ibid. Critically, the court stated:

The emotional condition of children is extremely important in the assessment of the parent-child relationship in connection with an imprisoned parent. Visitation and contact with an imprisoned parent may generate anxiety and serious emotional upheaval or disturbance. Substantial and enduring emotional and psychological injury can constitute harm to the child warranting a finding of unfitness. The effect of imprisonment, and the concomitant inability to carry out many regular and ordinary parental duties, can be deleterious to the emotional and psychological condition of the children.

 

[L.A.S., supra, 134 N.J. at 141.]

Here, Judge Tassini ultimately concluded the Division proved the second prong of the test in light of the harm Jamie would suffer if removed from the care of her current caretakers, the unlikelihood that C.C. would be able to remediate that harm, and lastly, the length of time it would take C.C. to acquire the stability and parental skills required to care for Jamie. The judge noted that C.C. did not have a specific plan for himself or Jamie upon release from prison. C.C. acknowledged that he would be unable to care for Jamie independently immediately after his release. C.C. will not be eligible for parole until November 7, 2015.

C.C.'s contention that the Division failed to provide services to him following his incarceration is of no consequence since he enrolled in comparable programs offered in the prison. The judge credited C.C.'s efforts in this regard but concluded these efforts were insufficient to overcome the potential harm to Jamie. We are satisfied Judge Tassini's findings on this prong are well-grounded in sufficient credible evidence in the record. See State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Locurto, 157 N.J. 463, 474 (1999).

B.

The third prong "requires [the Division] to undertake diligent efforts to reunite the family[,]" which encompasses a requirement that the Division consider alternatives to termination before deciding to terminate parental rights. K.H.O., supra, 161 N.J. at 354 (citing N.J.S.A. 30:4C-15.1a(3)). Whether the Division has fulfilled this obligation is examined "on an individualized basis[,]" though it must be cautioned that the "diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

C.C. argues the Division did not prove, by clear and convincing evidence, that it made reasonable efforts to place Jamie with his relatives or consider alternatives to the drastic step of terminating his parental rights. Specifically, he emphasizes the fact that he was not allowed to see Jamie and was not kept abreast of her development. In addition, C.C. contends the judge treated his proposed relative resources in a "peremptory fashion." We agree that during the pendency of the abuse or neglect proceedings and later the guardianship proceedings, C.C. was entitled to receive services from the Division.

"Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as including: (1) consulting and cooperating with the parent in developing a plan for appropriate services; (2) providing services to the family that have been agreed upon, 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.

Given C.C.'s actions in voluntarily enrolling in rehabilitative programs while incarcerated, the Division should have affirmatively kept abreast of C.C.'s progress and, if satisfied, updated the court with his progress. This is particularly so because McCue testified that but for the court's suspension of C.C.'s visitation privileges, he would have been permitted to see Jamie. The Division's statutory obligation to make reasonable efforts under the third prong does not end at the prison gates, especially in light of our Supreme Court's holding that incarceration may not be the sole basis for terminating parental rights. L.A.S., supra, 134 N.J. at 137-38.

While we agree the Division did not act affirmatively in discharging its statutory "reasonable efforts" obligations after C.C. was incarcerated in 2009, its failure to do so does not warrant reversal. It is undisputed that prior to his incarceration, C.C. failed to consistently visit Jamie and also failed to comply with a number of court-ordered and Division-offered services. Once incarcerated, he voluntarily started to participate in programs the Division had previously offered. He never alerted the Division of his changed position regarding his participation in these services.

Nor did he petition the court to reinstate his visitation privileges, despite personally appearing before the court for at least eight proceedings in connection with the abuse or neglect and guardianship actions. Thus, by his own conduct, C.C. did not address the suspension of his visitation rights before the trial court for over two years.

Finally, C.C.'s argument that the Division fell short of its obligation to assess the eligibility of his relatives as placement options for Jamie is without merit. C.C. proposed that his sister, K.P., should be considered for placement. K.P., when contacted, indicated she was happy with Jamie's current placement, especially since Jamie's foster parents live close and have allowed her to visit the child. One week before conclusion of the guardianship trial and two years after Jamie was placed with T.P. and B.P., C.C. provided information about his brother and his wife, K.C. and J.C. The Division contacted them despite the timing of C.C.'s recommendation. According to their testimony, they believed Jamie had been successfully placed. There is no requirement that the Division place a child with a particular parent's relatives. Watkins v. Nelson, 163 N.J. 235, 246 (2000) ("A presumption of custody exists only in favor of a natural parent as opposed to placement with relatives or foster parents."). Jamie's paternal relatives were assessed and each expressed no intention to disturb Jamie's current placement. Thus, the record establishes that all of C.C.'s proposed candidates, including those identified during the trial, were appropriately assessed and ruled out.

We are therefore satisfied that the record supports Judge Tassini's conclusion the Division provided reasonable services under the third prong.

A

ffirmed.

1 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. The name change is effective July 2, 2012. L. 2012, c. 16, eff. June 29, 2012.

2 Fictitious name.

3 E.C. has three other children: A.B., d.o.b. September 17, 1998, father J.B. is deceased; K.K., d.o.b. October 11, 2002, and M.K., d.o.b. June 01, 2005, were fathered by K.K. E.C.'s parental rights to Jamie were also terminated at the same time. She has not appealed this determination.

4 A DODD removal refers to the emergency removal without 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 "Pat" Dodd.