NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.C., SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5673-05T45673-05T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Appellant,

v.

R.C., SR.,

Defendant-Respondent,

and

D.C. AND V.A.,

Defendants.

IN THE MATTER OF THE GUARDIANSHIP OF

R.C., JR., C.C., and N.A.,

Minors.

_____________________________________

 

Argued December 4, 2006 - Decided December 15, 2006

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-62-06B.

Ann Marie Seaton, Senior Deputy Attorney General, argued the cause for appellant (Stuart Rabner, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Ms. Seaton, on the brief).

Thomas G. Hand, Designated Counsel, argued the cause for respondent R.C., Sr. (Yvonne Smith Segars, Public Defender, attorney; Mr. Hand, of counsel and on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for respondent minor, R.C., Jr. (Yvonne Smith Segars, Public Defender, Law Guardian; Ms. Vance, on the brief).

PER CURIAM

On July 17, 2003, plaintiff, the New Jersey Division of Youth and Family Services (DYFS), filed a verified complaint seeking the protective custody of R.C., Jr., and his half-brother C.C., following a referral to DYFS and follow-up investigation regarding the children's biological mother, D.C., and R.C., Jr.'s biological father, R.C., Sr. That same day, a Family Part judge determined that "the removal of the children [was] necessary to avoid an ongoing risk to the life, safety or health of the children," and ordered that they be placed in the immediate custody of DYFS.

On October 20, 2003, D.C. stipulated that she had abused alcohol while caring for the children. On February 10, 2004, and March 9, 2004, another Family Part judge ordered DYFS to "check into [R.C., Sr.] as a possible placement resource" for both C.C. and R.C., Jr. The March 9 order noted that "[i]f DYFS determines [R.C., Sr.] is a suitable placement resource for the children, they may be placed with him without further court order." On August 4, 2005, however, the same Family Part judge entered a permanency order, directing DYFS to file a complaint for guardianship of C.C. and R.C., Jr. The order was based on findings that D.C. had "not addressed her substance abuse issues" and R.C., Sr. had not "maintained appropriate housing," "maintained contact with DYFS," or "complied with DYFS services."

DYFS filed its complaint for guardianship on September 29, 2005, seeking termination of the parental rights of D.C. and R.C., Sr. Only R.C., Sr. contested the termination of parental rights as to R.C., Jr. A third judge was assigned to and presided over the guardianship trial on March 15, April 10, and April 12, 2006. On May 23, 2006, the trial judge issued a written opinion terminating the parental rights of D.C. The judge dismissed the guardianship complaint as to R.C., Sr., finding that DYFS had not established by clear and convincing evidence the four prongs of the best interests test as enumerated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), now codified in N.J.S.A. 30:4C-15.1(a), and directed DYFS to prepare a reunification plan. However, in rendering his opinion, the judge included the following warning to R.C., Sr.

This court is mindful of [R.C., Sr.]'s belief, expressed at trial, that according to his upbringing in Haiti and his religion, his child [R.C., Jr.] should be raised by his biological mother. Since this court has terminated [D.C.]'s parental rights to [R.C., Jr.], [R.C., Sr.]'s persistence and inflexibility on this issue may eventually defeat his reunification with [R.C., Jr.]. However he will be given the opportunity to demonstrate that he is able to provide for and parent [R.C., Jr.].

The judge denied DYFS's request for a stay of his order for unsupervised visitation, a reunification plan, and dismissal of the guardianship complaint. DYFS filed its notice of appeal on June 26, 2006. On appeal, both DYFS and R.C., Jr.'s Guardian Ad Litem contend that the judge erred in dismissing the guardianship complaint and that the proofs established by clear and convincing evidence each of the four prongs required by N.J.S.A. 30:4C-15.1(a), and therefore, they seek reversal of the judge's decision not to terminate the parental rights of R.C., Sr.

On June 28, 2006, while this appeal was pending and prior to oral argument, it was brought to the trial judge's attention that R.C., Sr. failed to attend his first post-trial supervised visitation scheduled for June 1, 2006. Efforts to contact R.C., Sr. were unsuccessful and he did not affirmatively reach out to his own counsel to reschedule the visit. According to R.C., Sr.'s counsel, R.C., Sr. was under the impression that he would receive a confirmation call for the visitation and when he did not receive one, he did not appear. The trial judge admonished R.C., Sr., stating the following:

You can't . . . sit back and -- because I'll tell you what's happening here. Your son's growing up, okay. And your son's been in foster care for a long time, to such an extent where he may not even remember you. I'm sure when he sees you he'll remember you.

But the longer he stays in foster care, the more difficult it is going to be to break that bond and reunite him with you. And if you don't show me a real desire and ability to take that child and care for that child, then the guardianship is going to be reinstated and we're going to be back to square one.

At appellate oral argument, all counsel informed us that R.C., Sr. has apparently changed his case plan to have R.C., Jr. live with T.L.M., the mother of one of R.C., Sr.'s other children. We also were informed that a bonding evaluation of R.C., Jr. and his foster parent was scheduled for the week following oral argument.

At trial, T.L.M. testified for defendant by telephone. R.C., Jr. had lived with T.L.M. and R.C., Sr. for a period of approximately six months in 2002 and 2003. At the time T.L.M. and R.C., Sr. lived together, she had been living at 142 Governor's Road in Lakewood for a period of one year with their daughter and her three sons. After they separated, however, T.L.M. withheld her new address from R.C., Sr. because D.C. was harassing her. Although R.C., Sr. pays child support to T.L.M. for their daughter, T.L.M. has withheld her current address from him for the past two years.

Our review of the record leads us to believe that R.C., Sr. has, over the years, effectively abandoned his son essentially due to his belief that R.C., Jr. should be cared for by either his biological mother or perhaps, another woman. We have grave concerns that R.C., Sr.'s new plan, which apparently envisions care of his son by a woman whose location is unknown to him and from whom he has been separated for a significant period, is a continuation of his attempt to pawn R.C., Jr. off to a woman and avoid his responsibility as a custodial parent. We also have serious reservations respecting the trial judge's determination that DYFS had not proven the first three prongs of the best interest test by clear and convincing evidence.

R.C., Jr. has been in foster care since August 2003. R.C., Jr. received counseling until May 2005, when he was reunited with C.C. in a foster home in Trenton. C.C. expressed his wish to be adopted by his foster parent, however, the possibility of adoption was never discussed with R.C., Jr. due to his young age. R.C., Jr. did state, however, that he wanted to be with C.C. and that "[w]herever his brother goes, that's where [he] wants to be." R.C., Jr. was reported to have bonded with his foster parent and his behavioral problems "literally disappeared within a month from the time" he arrived at the foster home. Also, the foster parent has expressed a desire to adopt both C.C. and R.C., Jr. According to DYFS, it is in R.C., Jr.'s best interest to be adopted by his foster parent because "[h]e's happy. He's nurtured. He's encouraged. . . . [H]e has . . . other sisters and brothers. . . . He has all his needs met. There is no violence in the home. . . . Everything is provided for and then some."

At oral argument before us, R.C., Sr.'s counsel indicated that he had no objection to a remand to determine whether R.C., Sr. has made any meaningful effort to reunite with his son. Non-participation in reunification and visitation by a parent for an extended period amounts to a total "failure to provide even minimal parenting to" a child which "is in itself a harm that endangers the health and development of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999).

R.C., Sr.'s apparent reticence has already resulted in a significant delay in placement that, together with any future delay in permanent placement, will most certainly result in further harm to the child. See In re Guardianship of K.H.O., 161 N.J. 337, 352-53 (1999). This is especially true if the scheduled bonding evaluations confirm the positive evidence in the record concerning R.C., Jr.'s current placement. If R.C., Sr. has continued, following the filing of this appeal, to ignore his responsibilities as a father, our determination of this appeal may be moot by intervening events. City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999).

The dismissal of the guardianship complaint is vacated and the matter is remanded for a determination as to whether R.C., Sr.'s continued conduct defeats reunification and supports termination of his parental rights. R.C., Jr. has been in foster care for a period of approximately three and one-half years. Out of an acute awareness of the need to expedite the matter, we direct the trial judge to reinstate the guardianship complaint, thus alleviating the need for DYFS to file a new complaint, hold a plenary hearing and determine anew whether R.C., Sr.'s conduct amounts to an abandonment of his son, such that his parental rights should be terminated. We direct the trial judge to make his determination within forty-five days. We retain jurisdiction. Our decision is without prejudice to R.C., Sr.'s right to appeal in the ordinary course, if the judge's determination is adverse to him.

Remanded.

 

C.P., the biological father of C.C., voluntarily surrendered custody and consented to adoption of C.C. on February 27, 2006.

The order also terminated D.C.'s parental rights to her third child, N.A., as well as the rights of N.A.'s biological father, V.A., who, like D.C., did not contest the guardianship complaint.

The first visitation was to be supervised. All others were to be unsupervised.

DYFS notes that "[s]ince the entry of the reunification order . . . both C.C. and R.C.[,] Jr. have shown regression in their emotional health" and therefore suggests "that counseling services be re-instated."

(continued)

(continued)

9

A-5673-05T4

RECORD IMPOUNDED

December 15, 2006