NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.F.S.

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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.F.S.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.I.S., a minor.

__________________________________

December 16, 2014

Submitted October 28, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-170-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.I.S.; Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

S.F.S. (Stanley)1 appeals from the Family Part's December 19, 2013, order terminating his parental rights to his daughter, A.I.S. (Alice), born April 30, 2012.2 We affirm substantially for the reasons set forth by Judge Linda Baxter in her thorough oral opinion.

I.

We find ample support in the record for Judge Baxter's detailed findings of fact. The Division of Child Protection and Permanency relied on the testimony of two caseworkers and Linda Jeffrey, Ph.D. Stanley testified on his own behalf. Judge Baxter credited the testimony of the Division's witnesses, and expressly found defendant to lack credibility.

Alice tested positive for opiates at birth. She was removed from the custody of her mother, D.A. (Darla), and placed with her maternal grandparents on May 3, 2012. Stanley was not considered an appropriate placement at the time because of his history of domestic violence, and his refusal to participate in services.

In summary, Judge Baxter found that Stanley lacked the ability to serve as a suitable parent to Alice, and his shortcomings placed Alice at risk. Before Alice was born, Stanley had committed multiple acts of physical violence against Darla. He also was physically violent toward Alice's older half-sister. Alice obtained a final restraining order against Stanley, although she later obtained an order of dismissal.

Stanley also had a significant criminal history resulting in extended periods of incarceration that prevented him from fulfilling a parenting role. When Alice was born, Stanley was serving probation on two separate Superior Court convictions for CDS-related offenses. He had previously been convicted for second-degree eluding, for which he was sentenced in May 2008 to three years of probation, conditioned on 364 days incarceration. On March 21, 2012, he was arrested on a new CDS-related charge. He was incarcerated between March 21 and 31, 2012, and August 1, 2012 and August 8, 2013, after entering a plea on March 22, 2013. He was released on the Intensive Supervision Program (ISP) and briefly incarcerated again for violating curfew and threatening his supervising officer.3

Dr. Jeffrey opined, and the court found, that Stanley suffered from an adjustment disorder. He had difficulty engaging in rule-governed behavior and non-violent conflict resolution. He suffered from a personality disorder, which included histrionic, narcissistic, and antisocial features. She concluded he was unable to serve as an appropriate role model and parent for Alice. Dr. Jeffrey also opined that Stanley's prognosis for overcoming these deficits was poor, and would require at least two years of intensive therapy. On the other hand, Stanley demonstrated neither the recognition of his problems, nor the commitment or motivation to address them.

Stanley had no contact with the child from the day she left the hospital and was placed with her maternal grandparents, until November 2013. Incarceration did not prevent him from participating in visitation between May 3, 2012 and August 2012, or after his release in August 2013. Yet, he did not begin visitation until November 2013.

Based on her bonding evaluations, Dr. Jeffrey concluded, and the court found, that Stanley had no significant bond with Alice. Severing her relationship with Stanley would be unlikely to cause harm because he was seen simply as a pleasant stranger. On the other hand, Alice was securely attached to her maternal grandparents who functioned as her psychological parents. Severing that relationship would place her at risk of serious and enduring harm.

Stanley also refused to participate in any services offered by the Division before he was incarcerated in August 2012. The Division offered a psychological evaluation, a substance abuse evaluation, and a domestic violence assessment. After he was released from prison in August 2013, he was referred to a six-week family violence prevention program. After attending the first session, he missed the next three sessions and did not complete the program before trial. He refused to appear for a substance abuse evaluation that had been scheduled for multiple dates.

Judge Baxter found the Division proved, by clear and convincing evidence, all four prongs of 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. 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.

In an oral opinion issued December 19, 2013, Judge Baxter found that the Division established prong one in three respects: Stanley absented himself from Alice's life for extended periods of time while he was incarcerated; his propensity for domestic violence and his personality disorder endangered Alice's health, safety and development; and he failed to establish stable living arrangements. The court expressly rejected as incredible Stanley's claim that he would be living in a suburban home with a new girlfriend.

As for prong two, the Division demonstrated that Stanley was unwilling or unable to provide a safe home for Alice because of his adamant refusal to participate in services, and his refusal to participate in visitation. The court noted that his personality disorder was deeply entrenched and Stanley was unlikely to change.

Judge Baxter held that prong three was met because Stanley refused to participate in services. The Division also considered alternatives to termination of parental rights. However, the maternal grandparents preferred adoption to kinship legal guardianship. Moreover, Stanley did not propose any family members as alternate caregivers.

Finally, regarding prong four, Judge Baxter found, consistent with Dr. Jeffrey's conclusions, that termination of parental rights would not cause more harm than good, because Alice did not have an attachment to her father. On the other hand, she had a secure bond with her maternal grandparents, who served as her psychological parents. Severing that bond would cause Alice severe and enduring harm that Stanley would be unable to mitigate.

Stanley presents the following point and sub-points for our consideration

POINT I: THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING S.S.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. The trial court's determination that the parental relationship endangered A.S. was not supported by credible, relevant evidence.

B. There was not clear and convincing evidence to support the trial court's determination that S.S. was unwilling or unable to parent his child.

C. The Division failed to provide S.S. reasonable efforts towards reunification.

D. Termination of parental rights will do more harm than good.

II.

We affirm substantially for the reasons set forth in Judge Baxter's opinion. We exercise limited review of the trial court's decision. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial court's fact findings, and its exercise of expertise in family matters. New Jersey Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We also discern no errors of law, which we review de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Stanley essentially challenges the factual basis for the court's determinations. However, after reviewing the record and applicable law in light of the arguments advanced on appeal, we discern no basis to disturb the court's findings, which were supported by substantial credible evidence, as we have discussed. We write briefly to discuss two points.

Stanley argues that the court placed undue emphasis on his incarceration in reaching its prong one finding. We disagree. Stanley's incarceration was lengthy. He made no effort to develop ties with his daughter before he was incarcerated in 2012. After his release in August 2013, he waited months to commence visitation. He was incarcerated again in 2014 for several months.

Stanley's incarceration was probative of whether he was capable of properly caring for his children. In re Adoption of Children by L.A.S., 134 N.J. 127, 135-36 (1993).

[A] parent's incarceration is considered to bear materially and directly on the parent-child relationship. Incarceration is regarded as probative of whether the parent is incapable of properly caring for the child or has abandoned the child. It is, therefore, a factor that is unquestionably relevant to the determination of whether the parental relationship should be terminated.

[Id. at 136-37.]

Stanley was a complete stranger to his daughter when he attempted to introduce himself to her in November 2013. See N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010) (affirming finding termination of parental rights of parent whose incarceration coincided with child's foster placement and who remained a stranger to child), certif. denied, 205 N.J. 519-20 (2011). We recognize that incarceration is not "so inimical to [the parental] relationship" as to require termination of parental rights as a matter of law. L.A.S., supra, 134 N.J. at 137. However, it is unquestionably a "material factor that bears on whether parental rights should be terminated." Id. at 143. The trial court appropriately considered it as such.

Stanley also argues that in reaching its findings regarding prongs two and three, the court gave insufficient weight to his efforts to engage in services after his release from prison in August 2013. Stanley argues that his inability to attend programs offered by the Division resulted from conflicts with programs he was required to attend as part of ISP. He also contends that the Division was obliged to arrange for services for Stanley while he was incarcerated.

We are unpersuaded. Stanley demonstrated an adamant refusal to participate in services or visitation before his incarceration. There was no evidence that he sought the assistance of the Division once he was in prison. Moreover, the Division lacked the ability, according to the testimony of the caseworker, to provide services to a parent while incarcerated.

Stanley's alleged effort to engage in programs after his release, in the face of conflicting schedules, does not undermine the court's finding that the Division made diligent efforts to provide services. "The diligence of [the Division's] efforts on behalf of a parent is not measured by their success." In re Guardianship of DMH, 161 N.J. 365, 393 (1999). Moreover, Stanley's efforts, made after Alice had been in placement for roughly eighteen months, were untimely and insufficient. Based on Dr. Jeffrey's findings, Stanley would require intensive services over at least a two-year period to potentially overcome his parenting deficits. Alice is entitled to permanency, and Stanley did not present "the realistic likelihood" that he would be "capable of caring for the child in the near future." In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999).

Stanley's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 For convenience of the reader, and to protect the child's privacy, we refer to the parties and others by pseudonymous first names.

2 On January 14, 2013, Alice's mother, D.A. (Darla), accomplished an identified surrender to Alice's maternal grandparents.

3 We take judicial notice that Stanley was incarcerated yet again between May 13, and November 11, 2014. Offender Details, State of N.J. Dep't of Corr., https://www6.state.nj.us/DOC_Inmate/ inmatefinder?i=I (last accessed Dec. 10, 2014). See N.J.R.E. 201(a) and 202(b).