NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. I.H.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5779-12T1

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

I.H.C.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF H.H.C., a minor.

________________________________________________________________

November 3, 2014

Submitted October 6, 2014 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FG-10-113-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Deric Wu, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patrice Smiley Andrews, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.H.C. (Janet L. Fayter, Designated Counsel, on the brief).

PER CURIAM

The Division of Child Protection and Permanency (the Division)1 executed an emergency removal of H.H.C. (Henry)2 shortly after he was born in November 2011. He was the fourth child of I.H.C. (Ian) and D.C. (Daisy) to be removed from their care and was placed with the same resource family as his two older sisters.3 Ian's and Daisy's parental rights to their three older children were terminated in June 2012. Daisy surrendered her parental rights to Henry in March 2013. Ian appeals from the termination of his parental rights. We affirm.

Termination of parental rights is warranted when the Division establishes 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.

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

See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).

In his appeal, Ian challenges only the sufficiency of the proof regarding the third statutory prong, specifically arguing that the Division failed to make reasonable efforts toward reunification. The third prong of the "best interests" standard contemplates the Division's efforts to assist the parent in addressing the problems that led to placement toward the goal of reunification. In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). Such efforts include

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, 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.

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

The Division's efforts should be measured not by their success, but against the standards of adequacy in light of the family's needs in a particular case. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).

Some factors that suggest that efforts to reunite the family are no longer reasonable include parents [who] refuse to engage in therapy or other services; . . . parents [who] cannot benefit from therapy or instruction due to mental retardation or psychosis; . . . parents [who] threaten workers, child, foster parents, or therapists; . . . another child in the home is abused or neglected and taken into care; . . . [and the] child shows serious adverse reaction to contact with parent. . . .

[N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986) (internal quotation marks and citations omitted).]

Ian's failure to comply with services was duly noted in the case involving the three older children. In stating the reasons for the termination of Ian's parental rights in that case, a different trial judge observed that Ian's refusal to cooperate with treatment recommended by the Division, which included marital, individual, and anger management counseling, dated back to 2009. His lack of compliance is consistent with a tattoo he has that reads, "I hate DYFS."

In this case, Ian was repeatedly ordered to submit to a psychological evaluation. The trial court found the need for such an evaluation to be "key" because it would serve "as a conduit to assessing [Ian's] needs in order to reunify him with [Henry]." It is undisputed that Ian refused to be evaluated because the psychologist scheduled to conduct the evaluation was Jewish.

The trial court's findings as to the third prong included the following

[T]he Division attempted to consult with the defendant, but he refused to comply with services and so[,] therefore, the Division wasn't able to provide the services. . . . [The Division caseworker] testified that due to the defendant's utter refusal to comply with even having an updated psychological [evaluation], the Division couldn't deploy services to him. She testified that if he did comply, the Division would have continued to deploy services to him as it did in the first case.

As found by [the trial judge in the first case], those services were as follows[:] anger management . . ., individual counseling . . ., domestic violence counseling that was Court ordered even outside of the Division's contractors, marital counseling . . ., in-home family preservation services . . ., visitation, transportation, participation in . . . family placement review meetings and intensive family preservation services and full notification of . . . Court events, dates, to permit him to seek parenting time. [The exhibits] all support the immensity of the services deployed by the Division . . . for the first three children and the services that it is willing to deploy for [Henry].

. . . .

The Court cannot think of any service that the Division could possibly deploy [other] than that which it has already deployed.

Although Ian admits he did not complete any services during the pendency of this case, he contends there is little evidence that he refused services. He states that his "only objection to the evaluation was that the psychologist was Jewish[,]" and that the Division made no effort to find an alternative psychologist. He also claims he was not unavailable to the Division and that the Division failed to inform him that his compliance with services was necessary for him to retain his parental rights.

We find these arguments unpersuasive. Although Ian provided his cell phone number to the Division, he failed to respond to notices sent to him at an address obtained from and verified with the Post Office. He declined to disclose his whereabouts or attend a court hearing because he stated he was fearful for his life. He stated "his organization," which he identified as "Hitler's Order," was protecting him and that he did not trust law enforcement to protect him because "law enforcement doesn't care about someone with Swastikas and tattoos." Consistent with his failure to appear at any court hearings, Ian also told the Division caseworker that he did not want to go to the Family Court but wanted to go to "federal buildings," where he believed he would win.

The Family Part's findings of fact and its conclusions of law based on those findings are entitled to substantial deference on appeal. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007); see also Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Thus, we "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605); see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

The only challenged finding here was whether the Division satisfied the third statutory prong of the best interests test by making reasonable efforts toward reunification. Because the trial court's finding that the Division had presented clear and convincing proof to satisfy this prong was supported by sufficient credible evidence in the record, it is entitled to our deference and will not be disturbed.

Affirmed.

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 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 to protect the privacy of the child.

3 In New Jersey Division of Youth and Family Services v. I.H.C., 415 N.J. Super. 551 (App. Div. 2010), we noted that Ian, who was an abused child himself, had medical and psychological disabilities which, due to inadequate treatment, led to his being illiterate and unemployed throughout his adult life. Id. at 557. We held the Division proved the need for protective services for the three older children pursuant to N.J.S.A. 9:6-8.21(c)(4) based upon evidence that Ian and Daisy suffered from serious and untreated psychological disabilities and had an abusive relationship. Id. at 586.