NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.C.

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NOT FOR PUBLICATION WITHOUT THE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 CHILD1

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.C.,

Defendant-Appellant,

and

S.N.,

Defendant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.N.-C., a minor.

____________________________________

February 5, 2014

Submitted January 6, 2014 Decided

Before Judges Parrillo, Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-221-12.

Joseph E. Krakora, Public Defender, attorney for appellant D.C. (Beryl Foster-Andres, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Rita Ann Gesualdo, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.N.-C.(Todd S. Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant appeals from an April 12, 2013 Family Part order terminating his parental rights to his daughter, S.N.-C. (Samantha).2The court's order also terminated the rights of Samantha's natural mother, S.N. (Sandra).3Defendant argues the New Jersey Division of Child Protection and Permanency (the Division) failed to prove each prong of N.J.S.A.30:4C-15.1a by clear and convincing evidence. We disagree and affirm.

I.

The facts are derived from the record at trial, at which defendant neither testified nor offered evidence. Defendant was born on May 20, 1968, and is the biological father of four daughters, one of whom, Samantha, born on June 10, 2011, is the subject of this appeal. Defendant's other daughters are all adults.

On June 11, 2011, the Division received a referral from the University of Medicine and Dentistry of New Jersey (UMDNJ) stating that Sandra tested positive for cocaine and heroin after giving birth to Samantha. Sandra admitted to using cocaine and heroin during her pregnancy and on the day of delivery, and that she was unable to care for Samantha. Samantha also tested positive for cocaine and opiates at birth, and suffered withdrawal symptoms that required her continued hospitalization.

Samantha was treated from June 11 to July 6, 2011, and discharged from the hospital on July 8, 2011. Following her release, the Division effected an emergency removal of Samantha pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to 8.82, and placed her with a foster parent, with whom she has resided since that time.

In July 2011, the Division held a Family Team Meeting with Sandra and defendant. At the meeting, the Division arranged weekly supervised visitation with Samantha on Thursdays between 3:00-3:30 p.m. "[Defendant] said whatever days that [Sandra] will come, he will come as well[,]" according to the Division caseworker. Defendant, however, only visited the child on two occasions.

In August 2011, the investigative caseworker met with defendant again to discuss visitation. Defendant explained that he was unable to plan for routine visitation due to his work schedule, as a day laborer. The caseworker attempted to accommodate defendant's work schedule by offering him "a letter that he could take to his job if they called him on a Thursday when he had to come see his baby[.]" However, defendant told the caseworker "that he would rather just play it by ear," if he got a call to work, he would work, and if not, he would visit Samantha. The caseworker attempted, unsuccessfully, to reschedule visits thereafter between defendant and Samantha.

In October 2011, the Family Part ordered defendant to submit to a psychological evaluation and a substance abuse assessment. The judge further ordered defendant and Sandra to provide the Division with twenty-four hour advanced confirmation of their visits with Samantha, because they had missed multiple scheduled visits with her without giving notice. The judge further found that it was not safe to return Samantha to defendant, as he had not made himself available to the Division for services, and had not contacted the Division to plan for Samantha. However, the judge ordered the Division to make the necessary referral for parenting skills training for defendant.

On January 11, 2012, the court relieved the Division of its obligation to facilitate visitation or provide services to Sandra and defendant, until such time as they came forward and requested them. The court noted that Sandra and defendant were referred to psychological and substance abuse evaluations on several occasions and did not attend the evaluation or follow up in any way, and missed almost every scheduled visitation with Samantha. On April 15, 2012, following an arrest for burglary, defendant was incarcerated at Essex County Correctional Facility/Delaney Hall (Delaney Hall).

On June 7, 2012, the court held a permanency hearing. Initially, the Division's plan was reunification with Samantha's parents, but the goal changed to adoption because Sandra was non-compliant with Division services, and defendant was non-compliant and incarcerated. The Family Part issued an order finding the Division's plan of termination of parental rights, followed by adoption, to be appropriate, and on June 22, 2012, the Division filed its complaint seeking guardianship of Samantha.

On November 8, 2012, defendant submitted to a psychological evaluation by Dr. Mark Singer at Delaney Hall. Defendant reported that he did not complete high school, but received his GED in 2003. Defendant also disclosed most of his criminal history to Dr. Singer, stating that he had been arrested approximately twenty-five times since 1992, incarcerated approximately seven times, and spent a total of eleven years in jail or prison.

Defendant told Dr. Singer that he was aware Sandra was using drugs during her pregnancy, but explained "there was nothing I [could] do." Defendant conceded that his last visit with Samantha was "over 8 months ago[,]" but he indicated that he would like to have visits with Samantha. Defendant also told Dr. Singer that he has been homeless since 2010 and acknowledged he currently could not care for his daughter.

Dr. Singer opined that defendant "is likely to have difficulty responding flexibly and effectively to the changing demands involved in parenting a child." Further, the doctor stated that given Samantha's age and the prolonged absence of defendant from her life, "it is not likely that any meaningful relationship has formed" between them. He also found that defendant's "antisocial behavior is likely to continue and will likely continue to impact upon [defendant's] ability to create stability in his own life, never mind the life of a child." Dr. Singer reported that defendant "does not know when he will be physically available to parent and the data suggest that even if he were to be released from custody today, he would continue to lack the resources needed to parent." Thus, Dr. Singer "recommended that [defendant] not be considered as a permanency option for [Samantha]."

On November 27, 2012, Dr. Singer, in an addendum to his report, reiterated his previous recommendation, and explained that he discovered that defendant had been convicted in 1992 for endangering the welfare of a child, which defendant did not disclose to him during their prior meeting. Dr. Singer stated that this conviction "raise[d] significant concerns regarding [defendant's] ability to adhere to limits placed upon his behavior, his ability to create stability in his own life, and his ability to care for a child."

On February 2, 2013, defendant was discharged from Delaney Hall. On March 4, 2013, the Division prepared a new case plan with defendant. During the meeting, defendant "indicated he wanted to care for [Samantha], but he did not know where he would be residing and how he would do that." The adoption caseworker attempted to have defendant submit to a urine screen, and offered defendant a substance abuse evaluation, but defendant refused both. The Division also offered defendant biweekly visitation with Samantha beginning on March 11, but defendant never called to confirm visitation, and never visited Samantha.

During the course of the proceedings, the Division investigated several possible relative resources for Samantha's placement. The Division explored two maternal relatives and one paternal relative, but all were ruled out.

Samantha continued to reside in the home of her foster mother, who expressed her intent to adopt Samantha. Samantha does not have any "special needs," and, other than suffering from asthma, is a healthy child. According to the Division's records, the foster mother's home was clean and neat, and Samantha was doing well in her care.

Following the trial, the Family Part judge rendered a decision from the bench, finding that the Division met its burden of proving by clear and convincing evidence all four prongs of the best interest test under N.J.S.A. 30:4C-15.1a. The Family Part judge analyzed prongs one and two together, and determined that both prongs had been satisfied. He found that while defendant did not cause the initial harm to Samantha, defendant "clearly [has] issues of stability." The judge further determined that defendant did not offer a plan for Samantha, and was not able to provide her with a stable environment. He noted that defendant's "history shows that he has really never cared for any of his [three] children[.]" Therefore, he held that defendant "continues to have maintained an unstable environment from the standpoint of housing, incarceration, jobs, or any other stability that would create a situation where prong [two] would be met."

With respect to prong three, the judge held that "unfortunately, [defendant] was incarcerated and . . . the Division was incapable of providing many of the services that they could have provided or would have been able to provide for if [defendant] was not incarcerated." The judge would have had "difficulties with [the] issue of reasonable efforts[,]" but defendant had been out of jail for a month, during which time the Division offered him visitation, drug evaluation, and other services. He found that defendant refused to comply with the Division's requests, did not offer any plan for Samantha, or show that he could provide a stable environment for her. He further found no "indication at this point that [defendant] is in a position that it is likely in the foreseeable future that he would be a viable option for [Samantha][.]" Defendant "basically abandoned this child[,]" as he only saw Samantha "once during the FN litigation, . . . before he was incarcerated[.]" The judge held that "the Division [] made reasonable efforts regarding the services they've attempted to provide, which [defendant] has not availed himself of. And they have evaluated all the relatives that were suggested for placement, none of those panned out[.]"

Finally, the judge was satisfied that under prong four, terminating defendant's parental rights will not do more harm than good. He found that Samantha was living with her foster mother for two years, and she provides the stability that Samantha needs, and the permanency defendant is unable to provide. He noted that Samantha's foster mother is the only family Samantha knows, and that defendant is an utter stranger to Samantha. The judge also found that defendant s involvement with the criminal system, his inability to take advantage of services, and his inability to find suitable housing undercut any stability he might otherwise have provided for Samantha.

Accordingly, the Family Part judge terminated defendant s parental rights and approved the Division s plan of adoption of Samantha by her foster mother.

This appeal followed.

II.

The Family Part judge carefully reviewed the evidence presented, and thereafter concluded that the Division had met by clear and convincing evidence all of the legal requirements for a judgment of guardianship. His opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and is supported by substantial and credible evidence in the record. New Jersey Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We therefore affirm substantially for the reasons that the judge expressed in his opinion.

Affirmed.

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

2 We use fictitious names for the individuals.

3 Sandra is not a party to this appeal.