DIVISION OF YOUTH AND FAMILY SERVICES v. K.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0817-06T40817-06T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

vs.

K.B.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF B.M.B.,

A Minor.

______________________________________

 

Submitted March 14, 2007 - Decided April 2, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No.: FG-07-63-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor child, B.M.B. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

After three days of trial testimony, the Family Part successively terminated the parental rights of T.H. (the birth mother) and of appellant K.B. (the biological father) concerning their daughter B.M.B., who is now age three. At the time of the trial judge's ruling concerning K.B. in June 2006, he was incarcerated and B.M.B. was living with a foster mother who has cared for her since birth. The foster mother plans to adopt B.M.B.

K.B. solely appeals the judgment. Because we are satisfied that the trial judge's decision is supported by substantial credible evidence and meets the four-prong statutory test under N.J.S.A. 30:4C-15.1, we affirm.

I.

K.B. is twenty-nine years old. He was living at home with his mother in 2001 when he started dating T.H. At that time, T.H. had three children unrelated to K.B. in the care of her mother, and was in the process of voluntarily surrendering her fourth child for adoption.

T.H. had been known to the Division of Youth and Family Services ("DYFS" or "the Division") since 1988, when the agency received its first referral because of drug exposure to T.H.'s first child. Similar DYFS referrals ensued after T.H. gave birth to additional drug-exposed children.

During their relationship, K.B. and T.H. were both addicted to cocaine. According to K.B.'s trial testimony, T.H., who had a long history of substance abuse, had introduced him to the drug scene. Eventually, K.B. became homeless and was housed in a drug rehabilitation shelter. T.H., meanwhile, was incarcerated, apparently because of parole violations.

On October 6, 2003, T.H. gave birth to B.M.B. while incarcerated at the Essex County Jail for Women. DYFS was notified of the child's birth that day. The following day, October 7, K.B. appeared at a DYFS office and identified himself as B.M.B.'s father. Although K.B. offered to serve as a caretaker for the child, DYFS determined that it would be unwise to do so in light of K.B.'s drug rehabilitation and residence in a shelter. DYFS instead suggested to K.B. that he finish substance abuse treatment, complete a parenting skills course, and obtain stable housing and employment. K.B. was also referred by DYFS for psychological evaluation.

After B.M.B. was discharged from the hospital, DYFS placed her with a foster mother. DYFS then filed a complaint in the Family Part seeking care, custody and supervision of B.M.B. That application was granted in October 23, 2003.

Concurrently, DYFS assessed other placement options for B.M.B. The maternal grandmother, who was already taking care of three of T.H.'s other children, indicated that she would not be able to take on another child. She alternatively suggested a family friend and a maternal aunt to care for B.M.B., but both of them were ruled out because of criminal backgrounds. Another family friend was assessed, but was also disqualified because she had a prior history of DYFS involvement. The only paternal relative identified as a potential caretaker was K.B.'s mother. However, she had doubts as to whether K.B. was the child's actual father, and did not want to be considered unless and until a paternity test confirmed K.B.'s parentage. DYFS also assessed, at K.B.'s request, his paramour N.M. After N.M.'s home was observed on two DYFS inspections to be in disorder and with paint chipping off the walls, and after N.M. insisted that K.B. was not residing with her, DYFS discontinued further efforts concerning her as a potential caretaker.

A psychological evaluation of K.B. in January 2004 reflected concerns that K.B.'s history of drug abuse, along with his unstable housing and employment situation, impeded his ability to serve as a parent. K.B. thereafter participated in a substance abuse evaluation. He submitted to periodic drug screens, which were negative. K.B. was also referred to a Narcotics Anonymous program, which he contends he completed but did not document to DYFS. The record suggests that K.B. remained drug-free through the time of trial.

K.B. also made some progress in employment. He obtained work at a retail store and thereafter at a video company and a restaurant, although the latter positions were never formally documented to DYFS with pay stubs or confirming letters on company stationary.

DYFS continued to have lingering concerns regarding K.B.'s housing stability. K.B. insisted that he was living with N.H., who advised DYFS to the contrary. K.B. delayed in providing DYFS with a copy of his apartment lease, and, even after that, the DYFS caseworker maintained the impression that the leased premises were really N.H.'s apartment.

K.B. completed a parenting skills program and made several attempts to establish a relationship with B.M.B. Beginning in February 2004, K.B. attended at least twelve biweekly supervised visitations with B.M.B. at a DYFS office. Eventually, DYFS approved the child for weekend visitation with K.B. However, on B.M.B.'s one and only overnight visitation with K.B. in May 2005, there were several problems. K.B. was not present for most of the time, and instead had the child looked after by an unidentified person who may have been a relative of his paramour, N.M. Additionally, K.B. displayed impatience with the child, and even threatened to "pop" her if she did not stop moving while he attempted to change her diaper. This unfavorable experience led DYFS to cease overnight visitation, but supervised visits at a separate location continued.

Meanwhile, B.M.B. remained in the competent day-to-day care of her foster mother, with whom she has steadily resided since November 2003. The record indicates that B.M.B. is asthmatic, and that her foster mother has been attentive to that special medical need.

Dr. Edward Johnson, Ph.D., a clinical professor of psychiatry, conducted bonding evaluations of B.M.B. with K.B. and with her foster mother, respectively, in November 2005 and in March 2006. As to K.B., Dr. Johnson observed

an insecure relationship between [B.M.B.] and her father. She appeared more often than not angry with her father, often apparently rejecting contact with him. [B.M.B.] did not appear comfortable or happy with her father. She cried frequently, tried to get away from him, and called for her [foster] mother. . . . The best that can be said of [B.M.B.]'s interaction with her father is that it was ambivalent. At times she seemed at ease with her father, but she was crying and apparently unhappy most of the time. On several occasions she reached out to the evaluator and resisted her father's efforts to hold her.

. . .

A very limited amount of time was spent with parent and child smiling at each other. The preponderance of [K.B.]'s statements to [B.M.B.] were admonishing rather than warm feelings.

Following a private session with K.B., Dr. Johnson opined that K.B. "did not appear ready to assume full parenting of his daughter."

By contrast, Dr. Johnson's bonding evaluation concerning the foster mother was quite favorable. Among other things, he noted that the foster mother, R.J., was "warm and loving toward [B.M.B.] and the child reacted with comfort." Dr. Johnson illustrated those findings with several examples:

On occasion [B.M.B.] wanted to play with a forbidden object and attempted to have her way by "crying." In these instances [R.J.] was kind but firm, and [B.M.B.]'s "crying" rapidly became laughter. [R.J.] was able to offer [B.M.B.] effective comforting.

[B.M.B.] is an active child who actively explored her surroundings. She from time-to-time returned to [R.J.], who for her apparently is a secure home base.

[B.M.B.] showed signs of reciprocity. She obviously enjoyed the affection displayed repeatedly by [R.J.] and returned it readily.

[B.M.B.] seemed relaxed and happy throughout [Dr. Johnson's] observations.

Dr. Johnson recommended that K.B. attend psychotherapy sessions and obtain further assistance in parenting skills and in drug abuse prevention.

On April 11, 2006, K.B. was placed in jail for 180 days, as the result of criminal trespass and loitering offenses. His incarceration suspended his visitations with B.M.B. As of the time of trial in June 2006, it was anticipated that K.B. would be released in or about August 2006.

The Family Part terminated the birth mother T.H.'s rights as to B.M.B. following a brief guardianship trial in April 2005, at which T.H. did not appear. Thereafter, the court conducted a two-day trial in June 2006 concerning K.B.'s parental rights. The sole witnesses were two DYFS caseworkers, Dr. Johnson, and K.B., who was brought in for trial from jail.

The caseworkers attested to their observations of B.M.B., K.B., the foster mother, and their respective dwellings. They explained why the Division's initial goal of potential reunification of B.M.B. with K.B. changed to foster home adoption, in light of K.B.'s unstable living quarters, his problems during visitation, and his incarceration. They also verified, however, K.B.'s various efforts to become a functional parent, including his completion of parenting classes and his negative drug screenings.

In his expert testimony, Dr. Johnson confirmed the opinions presented in his written bonding evaluations. He noted in particular "the bonding that [he] observed between [B.M.B.] and her foster mother was such that it would be emotionally painful and consequently harmful psychologically if the child were removed from her care." However, Dr. Johnson did acknowledge on cross-examination that there was no "total rejection" by B.M.B. of her father. Defendant presented no competing expert testimony.

On his own behalf, K.B. testified that he wished to maintain his rights as a parent. K.B. explained that he intended upon his release from jail to obtain his own apartment and resume employment, and that he anticipated getting assistance in supervising B.M.B. from his paramour and her own eleven-year-old daughter while he was at work.

After considering the testimony and several exhibits, the trial judge ruled in an oral opinion on June 30, 2006 that the four prongs for termination set forth in N.J.S.A. 30:4C-15.1(a) had been satisfied. In the course of his decision, the judge expressed considerable empathy for K.B., but nonetheless determined that the proofs as a whole objectively warranted termination. Although the judge recognized K.B.'s "high motivation to be a good father," he also echoed Dr. Johnson's observation that "[g]ood intentions alone are insufficient for successful parenting."

Among other things, the judge particularly faulted K.B. for his poor judgment in leaving the child alone with his paramour and others in her apartment during weekend visitation, and K.B.'s misconduct which led to his recent incarceration. Given K.B.'s problematic history, the judge determined that the child was entitled to "a more permanent situation" with her foster mother, and awarded DYFS guardianship.

K.B. thereafter filed the present appeal.

II.

When seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing proof, the following factors:

(1) The child's safety, health and development has been or will continue to be endangered by continuation of 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 f[ro]m his foster 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.

[Ibid. See also New Jersey Division of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling factors later codified in Title 30).]

We recognize that the termination of a parent's right to raise her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).

K.B. argues that the proofs at trial failed to satisfy each of the four cited factors required to terminate his parental rights. Having given due consideration to those arguments, we disagree.

Our standard of review of a trial court's termination of parental rights is limited. See New Jersey Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, factual findings of the trial court should be upheld if they are "supported by adequate, substantial and credible evidence on the record." M.M., supra, 189 N.J. at 279. Bearing in mind that deferential standard, we turn to the trial proofs regarding the four statutory factors.

First, we consider whether B.M.B.'s health and development were or will be endangered by K.B. N.J.S.A. 30:4C-15.1(a)(1). The harm must be of a nature that is "likely [to] have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. The harm need not be physical, but may also include "the potential for serious psychological damage to the child." A.W., supra, 103 N.J. at 605. Although our courts, in assessing such harm, are rightly cautious in removing children from their biological parents, we do not "wait to act until a child is actually irreparably impaired" before taking action. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

Applying these standards here, we note that the trial judge identified several facts establishing the first prong. The judge noted that, at the time of B.M.B.'s birth, K.B. had "fallen upon difficult times" and was living in a shelter for drug addicts. As the judge sensibly observed, K.M.B. "[s]urely . . . was in no position to be a responsible caretaker at [that] time." The judge also pointed out that the birth mother's own drug dependency and past failures to raise her four other children were "well known to him [K.B.]." The judge consequently found that placing the child with K.B. at birth would have placed her at "substantial risk of both physical and emotional harm." The judge referred in this regard to K.B.'s past inability "to provide a safe and stable home." The judge also credited the expert testimony of Dr. Johnson and found that a "delay of permanent placement will only add to [the] harm."

With respect to the risks of harm to B.M.B. following her birth, the judge also made other pertinent findings, even though he did not specifically clarify them within the first prong of the statute. In particular, the judge cited in the course of his oral opinion K.B.'s housing instability, his poor judgment in leaving B.M.B. with a relative of his paramour, his psychological profile suggestive of "a significant history of anti-social behavior," and, ultimately, K.B.'s incarceration in 2005 placing him in "a more difficult parental position today." These additional facts bolster the judge's determination that K.B. has placed the welfare of his daughter at risk, and is likely to continue to present such risks in the future.

We recognize that K.B. has not physically abused B.M.B., notwithstanding his unfortunate threat to "pop" her while changing her diaper. But physical abuse is not essential to the first prong of the statute. The dangers presented by K.B.'s unstable personal circumstances and his incarceration at the time of trial did not result in his daughter being bruised or battered. Nonetheless, K.B.'s failure to provide a safe and stable environment for his daughter necessarily required DYFS to find another option, namely a foster home. In that foster home B.M.B. has thrived, and there is substantial credible evidence to support the judge's finding that tearing the child out of that home would be apt to produce psychological harm.

K.B. contends in his brief that the trial judge applied an improper "parental unit" analysis on the first prong, and erroneously found that "inadequate" parental ability "justified the termination of his parental rights." The "parental unit" argument relates to the trial judge's references to T.H.'s drug use. As part of his analysis, the judge did consider T.H.'s addiction during her pregnancy, and K.B.'s awareness of that addiction. We recognize that our case law in DYFS termination matters at times has recognized a parent's duty to "exert reasonably successful efforts to protect the child from the harm inflicted by the deficient parent." New Jersey Div. of Youth and Family Servs., 388 N.J. Super. 81, 102 (App. Div. 2006); see also D.M.H., supra, 161 N.J. at 380 (1998) (finding that a father had compounded a mother's neglect and contributed to circumstances that required their children's placement in foster care, even though the children were not in his physical custody). But we need not hinge our assessment of the first prong on those circumstances, for, as we have already noted, there are other sufficient proofs of endangerment to satisfy the statute. Thus, we need not address the "parental unit" argument any further.

K.B. also criticizes the trial judge for finding significance in the inadequacy of his parental abilities. To be sure, we share the trial judge's recognition that K.B. took several steps to become a competent parent, and for that he deserves to be commended. However, K.B. also was found to have exercised poor judgment in leaving the child with third-party caretakers, failing to maintain a stable living situation, manifesting behavioral problems, and, ultimately, causing his contact with the child to be aborted by virtue of his incarceration. See In re Adoption of Children by L.A.S., 134 N.J. 127, 133-38 (1993) (recognizing that a parent's imprisonment, while not dispositive in and of itself, "necessarily limits a person's ability to perform the 'regular and expected parental functions'") (quoting N.J.S.A. 9:3-46(a)).

Although we appreciate the efforts K.B. made to improve his parental abilities, we nonetheless are satisfied that there is substantial credible evidence to support the trial judge's finding that K.B. was responsible for harm to B.M.B. and that such harm was likely to continue in the future.

The trial proofs regarding the three remaining statutory factors are even more compelling. As the second prong, the proofs were ample to establish that K.B. was "unable," if not "unwilling," to provide a safe and stable home for B.M.B., and that "the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). Although K.B. urges in his appeal that he should have been afforded more time to attempt to demonstrate his ability to raise B.M.B., we are persuaded that DYFS and the trial judge did not act prematurely in divesting him of his parental rights while K.B. was in jail and B.M.B. was approaching the age of three. The trial judge also appropriately relied upon Dr. Johnson's unrebutted opinions resulting from his bonding evaluations, which suffice as "evidence that separating the child from [her] [foster] parent[] would cause serious and enduring emotional or psychological harm to the child[.]" Ibid.

We further sustain the judge's finding that the third prong of the statute, concerning the provision of reasonable services by DYFS, was fulfilled. N.J.S.A. 30:4C-15.1(a)(3). The record is replete with a variety of reasonable measures taken by DYFS to help K.B. attempt to reunify with his daughter. DYFS arranged to provide K.B. with parenting skills training, substance abuse and psychological assessments, drug screening, regular visitations with B.M.B. and other resources. The agency diligently investigated each of the alternative caretakers suggested to it. Although these efforts proved to be unsuccessful in the end, that lack of success does not render them unreasonable. See D.M.H., supra, 161 N.J. at 393.

The fourth and last statutory factor requires the court to perform a balancing test and determine whether "[t]ermination of parental rights will not do more than good." N.J.S.A. 30:4C-15.1a(4). Here again, we are satisfied that the trial judge had ample grounds to find the proofs as a whole weighed in favor of termination. The judge specifically found that the bonding evaluations were "credible." He noted that B.M.B. has lived with her foster mother virtually since birth, and that the foster mother was willing to adopt her. The child responded with "warm affection" to her foster mother. In contrast, she showed no emotional reaction to K.B. coming or going, and her interactions with him were described by Dr. Johnson as "ambivalent." The Law Guardian, who serves as a non-binding advocate for the child's best interests, urges that the judge's determination on this factor be affirmed. On the whole, there is substantial proof to support the judge's assessment. See K.H.O., supra, 161 N.J. at 355 (noting the court's obligation to determine whether "the child will suffer a greater harm from the termination of ties with her natural parent[] than from the permanent disruption of her relationship with her foster parent[]").

In sum, we conclude that the judge's ultimate determination was supported by substantial credible evidence, see M.M., supra, 189 N.J. at 279, and that the judge's decision comports with the applicable law. In reaching that conclusion, we by no means disparage K.B.'s earnest desire to serve as a responsible caretaker, or his various efforts to achieve that aspiration. However, the countervailing proofs are simply too strong to compel the reversal of the trial judge's considered findings.

Affirmed.

 

Although K.B. never was required to submit to a paternity test, the parties to this appeal do not dispute his biological parentage of B.M.B.

The record does not confirm whether, in fact, K.B. was subsequently released.

In this regard, we have taken into account that B.M.B. was not found drug-addicted at birth, and that K.B. did promptly identify himself to DYFS and offered to take responsibility in the child's care and supervision.

(continued)

(continued)

18

A-0817-06T4

RECORD IMPOUNDED

April 2, 2007