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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6682-04T46682-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant,

IN THE MATTER OF

THE GUARDIANSHIP OF

D.C. and J.M.C.,

Minors.

_______________________________

 

Submitted January 25, 2006 - Decided February 27, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Chancery Division - Family Part,

Hudson County, No. FG-09-256-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Christine B.

Mowry, Designated Counsel, on the brief).

Nancy Kaplen, Acting Attorney General,

attorney for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel and

on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor child-respondents

D.C. and J.M.C. (Olivia Belfatto Crisp,

Assistant Deputy Public Defender, on the briefs).

PER CURIAM

J.C. appeals from a judgment terminating his parental rights to his two sons, David and Joseph. After reviewing the record in light of the contentions advanced on appeal, we affirm.

J.C. was involved in a relationship with J.B. for several years. David and Joseph were born of that relationship, which ended a few months before Joseph's birth. David will be eleven years old in July. Joseph will turn eight years of age in May. David has not lived with his father for the past eight years; Joseph has never done so. Prior to his relationship with J.B., J.C. was involved in another relationship from which a child was born. The record in this matter is entirely silent as to the nature of J.C.'s relationship, if any, with that child. J.B. has six other children through two other relationships. She surrendered her parental rights to all these children shortly before the trial of this matter commenced.

The trial was brief. The evidence presented by the Division of Youth and Family Services ("DYFS") in support of its position that J.C.'s parental rights should be terminated

consisted of the testimony of one witness, Daniel Sianozecki, the caseworker for this matter, and documents P-1 through P-138 marked into evidence. The entire defense case consisted of J.C.'s testimony.

J.B. had two daughters when she and J.C. entered their relationship. When that relationship foundered, J.B. became involved with N.S. and had four more children. Her relationship with N.S. was unstable. N.S. was physically violent to J.B., leading to the entry of several restraining orders against him. The children also reported that N.S. would hit them. DYFS advised J.B. that it was essential that she did not permit N.S. on the scene, and she indicated she understood. The children reported, nonetheless, that N.S. would frequently visit.

In addition to the children witnessing N.S.'s abuse of their mother and experiencing that abuse themselves, they also lacked appropriate housing. When DYFS finally filed its complaint seeking protective services in May 2004, J.B. and the eight children were staying in a motel on Tonnelle Avenue in Jersey City.

In his testimony, J.C. asserted that he loved his sons David and Joseph, had a good relationship with them and was able to parent them. A close examination of the record, however, does not support that conclusion.

J.C. testified that he saw the boys on a regular basis after his relationship with J.B. ended. That is belied, however, by his candid admission that he did not know of the earlier episodes when the family had been living with no heat or had been homeless. His testimony in this regard is further weakened by his failure to act to protect the boys from N.S.'s anger. He permitted them to remain in an environment that exposed them to an abusive relationship. In addition, the boys had been in foster care for several weeks before J.C. was even aware of it. Further, we note that once J.C. learned that the boys were in foster care, although he went to DYFS to inquire as to what was going on, he essentially thereafter relied upon J.B. to relay to him information as to visitation and case status. He did not return to DYFS but was content to receive sporadic, intermittent updates from J.B.

DYFS told J.C. that he would need to provide suitable housing and stable employment if he wished to have the boys placed with him. As to the latter, at the time of trial he was still working on an apparently sporadic as-needed basis in construction for his brother. There was no evidence that he had made any attempts to find a more permanent position.

When J.C. first learned of DYFS's involvement with David and Joseph, he was involved in another relationship. He told DYFS that he wished the boys to live with him and his then-girlfriend. By the time of trial, that relationship had ended, and J.C. was living with his mother in a multi-family house in Jersey City that the family owned. J.C.'s sister, brother and sister-in-law also lived in the same building. He proposed that the children would live there. DYFS inspected the premises and agreed that with certain slight modifications for sleeping arrangements, it would be physically suitable. At trial, J.C. testified that his mother, sister-in-law and sister would all help in caring for the boys. None of these individuals testified, however, that they had agreed to provide such assistance and, thus, his testimony about their willingness in this regard was uncorroborated.

DYFS had, moreover, earlier ruled out J.C.'s sister as an appropriate placement for the boys because she was involved in a relationship with an individual who had a criminal record. Presumably the boys would be exposed to that individual if J.C.'s sister were to be involved in assisting him.

In addition, Joseph, the younger boy, has particular needs. Although he has not been formally diagnosed with attention deficit hyperactivity disorder, he is quite active and appears to have difficulty following directions and paying attention. Joseph was six when he was first placed in foster care, and he was diagnosed with encopresis, regularly defecating on himself or the floor. Although that condition appears to have been alleviated, Joseph requires particular parenting skills and sensitivity. There is no indication that J.C.'s relatives, even if they had agreed to provide assistance to J.C., were aware of the potential difficulties and would be able to deal with them.

On appeal, J.C. presents the following arguments:

POINT I J.C.'S PARENTAL RIGHTS WERE TERMINATED BECAUSE THE FOSTER PARENTS WERE FOUND TO BE "BETTER" THAN THE BIOLOGICAL FATHER. FURTHER, THE COURT DID NOT CONSIDER ALL OF THE EVIDENCE BEFORE MAKING THE DECISION TO TERMINATE HIS RIGHTS.

POINT II J.C. WAS DENIED DUE PROCESS AND FUNDAMENTAL FAIRNESS WHEN HE HAD NO OPPORTUNITY TO CHALLENGE THE PSYCHOLOGIST WHOSE REPORT FORMED THE BASIS FOR TERMINATION OF HIS PARENTAL RIGHTS, PARTICULARLY AS THAT REPORT IS CONTRADICTORY TO OTHER STATE EVIDENCE. [Not Raised Below]

A parent's right to a relationship with his or her child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). It is not, however, absolute; the State has a "parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.

A court may grant termination of parental rights only after clear and convincing proof that DYFS has satisfied the four-prong test set forth in N.J.S.A. 30:4C-15.1a and enunciated in A.W., supra, 103 N.J. at 612. DYFS must establish that the children's "safety, health or development has been or will continue to be endangered by the parental relationship," N.J.S.A. 30:4C-15.1a(1); that the parent is "unwilling or unable" either to eliminate those harms or to provide the children with a "safe and stable home," N.J.S.A. 30:4C-15.1a(2); that it has made "reasonable efforts" to assist the parent in remedying the problem, N.J.S.A. 30:4C-15.1a(3); and that terminating parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). These four prongs 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.

The trial court, in a comprehensive oral opinion, set forth its conclusions that DYFS had established each of these four requisite elements and its reasons in support of those conclusions. We concur in its analysis.

As to the first prong, the Supreme Court has noted that a parent's failure to provide "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). The trial court concluded that the evidence was "overwhelming" that J.C. had not been a caretaker for his sons for approximately eight years, and it specifically rejected his testimony that he had been involved with them on a regular basis.

As to the second prong, the trial court correctly noted that J.C. had not acted to provide a safe and stable home for these boys over the course of the years following his separation from J.B. Even as of the time of trial, to the extent he had formulated a plan, it was not structured and definite but amorphous and undefined.

As to the third prong, the sufficiency of DYFS's efforts, they must be measured on a case-by-case basis. "Whether particular services are necessary in order to comply with the diligent efforts requirement must, therefore, be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. The efforts on the part of DYFS are not to be deemed insufficient because reunification was not achieved.

The diligence of DYFS's efforts on behalf of a parent is not measured by their

success. Thus, the parent's failure to become a caretaker for his children is not determinative of the sufficiency of DYFS's efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case.

[Id. at 393.]

To this we add only the observation that in terms of J.C.'s relationship with Joseph, it is inappropriate to speak of "reunification" in light of the fact that Joseph has never lived with J.C.

Here, DYFS did make an effort to reach out to J.C., who was absent for much of the time after DYFS filed its complaint for protective services. In addition, J.C. did not make all scheduled visits, and he did not attend all scheduled evaluations. DYFS explored the possibility of placing the children with J.C.'s sister but reasonably determined that was impossible in view of the criminal records of certain household members. We concur with the analysis expressed by the trial court that in the context of this case it was entirely reasonable for DYFS to place the greatest emphasis on providing services to J.B., who was struggling with the care of eight children in the context of an abusive relationship. The Supreme Court has recognized that the efforts of DYFS are "properly viewed in light of [its] efforts on behalf of this family as a whole." D.M.H., supra, 161 N.J. at 391.

The fourth and final prong involves consideration whether these boys would "suffer a greater harm from the termination of ties with [their] natural parent[] than from the permanent disruption of [their] relationship with [their] foster parents." K.H.O., supra, 161 N.J. at 355. We have, in the context of this case, no quarrel with the trial court's assessment that it was "common sense" that David and Joseph would suffer harm if they were removed from their foster home and placed with J.C. This was the third foster home in which the boys had lived. They had been exposed to chaos and violence while residing with J.B. and experienced several episodes of homelessness. Joseph's encopresis had resolved, and the evidence indicated he was making significant progress in controlling his behavior in school.

We recognize, as did the trial court, that Dr. Seglin, who conducted a bonding evaluation of the foster parents on behalf of DYFS, did not state within his report that the boys would suffer enduring harm if they were separated from that foster family. We also recognize that in In re Guardianship of J.C., 129 N.J. 1, 25 (1992), the Supreme Court stated that weighing the respective bonds with a natural parent against those with a foster parent "is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship." We do not interpret that principle, however, to mandate the use of particular formulaic language. That is particularly so, in our judgment, in a matter such as this, in which it is clear that Joseph has no real bond at all with J.C.

We have already set forth various portions of the record supporting that conclusion, and we will not restate them here.

The scope of our appellate review is limited; the lower court's findings "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks omitted). Here, the trial court's findings find ample support in the record.

We turn now briefly to J.C.'s remaining contention, that the manner in which the trial was conducted deprived him of his due process right to cross-examine Dr. Seglin. As we noted earlier in this opinion, the only witness who testified on behalf of DYFS was the case worker. Dr. Seglin, who had conducted bonding evaluations of the boys both with J.C. and with their foster parents, did not testify; rather, the reports that he prepared were received into evidence. This, J.C., contends, deprived him of the right to cross-examine Dr. Seglin.

The court rules specifically provide for the receipt of such reports, without the necessity of the author appearing as a witness and testifying. The rules further provide that "[c]onclusions drawn from the facts stated [in such reports] shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). If such a procedure is followed, the better practice is for counsel to stipulate on the record that they agree to their admission, foregoing cross-examination of the authors. Although the record here does not contain such a formal stipulation, it is apparent from the record that that is what occurred. At trial, J.C.'s counsel neither objected to the admission of Dr. Seglin's report nor requested that he be produced for cross-examination.

We have considered whether this matter should be remanded to permit J.C. to cross-examine Dr. Seglin. We have, for several reasons, rejected that approach.

We note, for instance, that J.C.'s attorney, in her summation, pointed out to the court certain sections of Dr. Seglin's reports that she deemed deficient. If Dr. Seglin appeared in person and testified, he might have provided explanations for those perceived deficiencies. The result would be to deprive J.C. of his argument in that regard. In addition, J.C. was entirely free to proffer testimony or reports to counter those of Dr. Seglin but chose, for whatever reason, not to do so. We decline, from the vantage point of appellate review, to second-guess these strategic decisions. We are unable to conclude that these proceedings were unfair to J.C.

 
The judgment under review is affirmed.

We have used fictitious names for ease of understanding.

(continued)

(continued)

13

A-6682-04T4

RECORD IMPOUNDED

February 27, 2006