NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.P.H.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3330-06T43330-06T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.P.H.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF T.C.H.,

Minor.

_______________________________

NEW JERSEY DIVISION OF YOUTH AND DOCKET NO. A-3331-06T4

FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.E.Y.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF T.C.H.,

Minor.

________________________________________________________________

 

Submitted November 15, 2007 - Decided

Before Judges Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-42-07.

Yvonne Smith Segars, Public Defender, attorney for appellant J.P.H. in A-3330-06T4 (Catherine Reid, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant R.E.Y. in A-3331-06T4 (Beth Anne Hahn, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent in A-3330-06T4 and A-3331-06T4 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tara Beth Lefurge, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor T.C.H. in A-3330-06T4 and A-3331-06T4 (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

This is a termination of parental rights case. We decide in this opinion the consolidated appeals of J.P.H., the mother, and R.E.Y., the father, of the judgment terminating their parental rights to their daughter, T.C.H., who was born on November 2, 2002. Both appellants argue that the Division of Youth and Family Services (DYFS or Division) failed to establish by clear and convincing evidence all four prongs of the best interests test. J.P.H. further argues that (1) the Division's interference in the relationship between her and her daughter violated her equal protection rights under the constitutions of the United States and New Jersey, and (2) the trial court mistakenly exercised its discretion in admitting in evidence the Division's expert report and certain Division contact sheets, because they were not timely submitted to her, resulting in a denial of her due process rights under the constitutions of the United States and New Jersey. We reject these arguments and affirm.

J.P.H. and R.E.Y. were never married. At the time of T.C.H.'s birth, J.P.H. was nineteen years old and R.E.Y. was twenty-six years old. J.P.H. has no other children. R.E.Y. has an older daughter by a prior relationship. Notwithstanding some evidence that J.P.H. initially told R.E.Y. that the child with whom she was pregnant was not his, it is clear that R.E.Y. knew the child was his immediately upon her birth. At the time of conception, both parents lived in Morristown. However, during the pregnancy, R.E.Y. relocated to Richmond, Virginia, where he has continued to live ever since.

For the first two and one-half years of T.C.H.'s life, she lived with her mother at various locations, including the home of J.P.H.'s mother, with other relatives, and at shelters. DYFS first became involved with this child when it received a referral on April 28, 2005 from the Morris County Office of Temporary Assistance, reporting that J.P.H. and T.C.H. were homeless. There was an outstanding warrant for J.P.H.'s arrest based on a prior assault charge. J.P.H. had also assaulted a fellow resident at another homeless shelter three months earlier and was at the current shelter because her mother threw her out of the house for fighting with J.P.H.'s brother. There was another alleged past assault at Homeless Solutions in Morristown. The Morris County Office of Temporary Assistance was unable to place J.P.H. in another shelter because of her history of violent behavior. A prior shelter also reported that J.P.H. hit her daughter as a form of discipline.

At the time of the referral, the DYFS representative observed T.C.H. to be very verbal, appearing "very healthy, well-groomed and . . . appropriately dressed." There were no visible marks on the child. She had attended eight days of daycare and received one medical examination, receiving all required shots.

J.P.H. had quit her previous job at Walmart eight months earlier "because she didn't like her position" and she did not seek further employment. She acknowledged a five-day stay in 2003 at the Morristown Memorial Hospital for depression. She had been prescribed medication for her condition, but discontinued its use and did not follow up with recommended therapy. J.P.H. also acknowledged a history of physical abuse perpetrated against her. She acknowledged that she sometimes disciplined her daughter by "pop[ping] her on the butt, leg or hand with an open hand," but she did not intend to harm her.

The only shelter with an available bed at which J.P.H. could be placed was the Salvation Army, which did not accept children. J.P.H. refused the placement. DYFS substantiated a finding of neglect based upon J.P.H.'s homelessness and inability to shelter her child due to "continuous engagement in violence," the admitted use of corporal punishment, and her continued lack of employment. Because of the absence of physical marks on the child, no finding of abuse was made.

DYFS searched for a suitable family member for placement, and succeeded in finding the child's maternal great aunt, J.H. J.P.H. agreed to sign a case plan, and to cooperate with anger management counseling and DYFS evaluations. However, she refused to sign a fifteen-day consent form for placement of the child with J.H., as a result of which an emergency removal was effected. On May 2, 2005, an order was entered placing T.C.H. under the care and custody of DYFS.

On July 13, 2006, DYFS filed a complaint for termination of parental rights and guardianship.

T.C.H. has remained in the custody of her great aunt since the original placement in April 2005. J.H. has consistently provided a safe, clean, and stable home environment. From the outset, she expressed a willingness to care for the child as long as necessary until her niece got better. She supervised visitation by J.P.H. However, J.P.H. visited only sporadically, without prior notice. Further, J.P.H. did not inform her aunt or other family members where she was living or where she could be reached. From September 2005 until September 2006, J.P.H. virtually "disappeared." She continued to be unavailable to her family, including J.H., and she did not respond to DYFS inquiries or furnish DYFS with contact information. She also failed to appear for court proceedings.

The record reflects that in September 2005, J.P.H. stole $40 from a former acquaintance, and she tested positive for cannabis abuse in late September 2005. Attempts by DYFS to find J.P.H. during this time were unsuccessful.

The Division made efforts to arrange for anger management programs for J.P.H. The efforts were unsuccessful, partly because of scheduling and funding issues, and partly because of J.P.H.'s noncompliance.

After the initial removal of T.C.H. in April 2005, the Division began to search for R.E.Y. Although he had occasional contact with J.P.H. since his relocation to Virginia, J.P.H. was unable to furnish any specific contact information. R.E.Y. was finally located in January 2006 through probation records. A Division caseworker wrote to R.E.Y. on January 26, 2006. However, she did not make contact with him until March 2006. Even then, R.E.Y. could be reached only at one telephone number, and, after some time, there was no way to leave a message because of a full mailbox. Another time, the phone was disconnected. The record reflects the protracted steps necessary to reach R.E.Y. either by telephone, personal service, or certified mail. R.E.Y. acknowledged that DYFS left a number of messages for him, with a contact number, during this period.

J.P.H. had identified R.E.Y. as the putative father of T.C.H. When DYFS reached R.E.Y., he agreed to submit to a paternity test, which was conducted in April 2006, and which confirmed his paternity. R.E.Y. indicated an interest in obtaining custody of T.C.H. Accordingly, DYFS forwarded a request through the Interstate Compact on the Placement of Children for Virginia to conduct an evaluation of R.E.Y.'s home. The Division also obtained R.E.Y.'s criminal history, which revealed that R.E.Y. served a three-and-one-half-year term of incarceration in New Jersey for the manufacture, distribution or dispensing of a controlled dangerous substance, second-degree vehicular homicide, and operation of a motor vehicle without a license.

An October 19, 2006 urine screen of R.E.Y. was positive for marijuana and barbiturates. He contended that he broke his thumb at work and obtained Percocet on the street for the pain. He further contended that he was a casual marijuana smoker. Because of R.E.Y.'s reported history of drug use, DYFS asked him to submit to a substance abuse evaluation. He did so in December 2006, and it was recommended that he receive substance abuse treatment.

Since R.E.Y. was located, the Division offered to facilitate visitation with his daughter. The Division offered to arrange a meeting place and pay the cost of his travel to New Jersey. The Division also offered to pay for his transportation costs to come to New Jersey for psychological and bonding evaluations. With respect to visitation, R.E.Y. said he could arrange everything when he came to visit his family in New Jersey because his mother lived in close proximity to J.H.'s home. He claimed to see T.C.H. on occasion at a local park and to spend "a few minutes" with her on those occasions. J.H. confirmed that R.E.Y. occasionally called and spoke to T.C.H. on the phone. T.C.H. was aware that R.E.Y. was her father. However, when R.E.Y. came on one occasion to visit T.C.H. at the home, J.H. reported that T.C.H. did not know who he was until she recognized his voice.

The Division did provide reimbursement to R.E.Y. for his reported trips to New Jersey, notwithstanding some confusion over the receipts R.E.Y. provided. On one occasion, he provided a receipt consisting of a train stub in the name of someone else for a trip to Florida. This confusion delayed the payment process, but the Division nevertheless accepted R.E.Y.'s claim that his bus trips from Richmond to New Jersey cost $40 each way and made disbursements accordingly. Reimbursement was also provided for the cost of other aspects of the trip after arriving in New Jersey, including train tickets and cab fare.

The Division engaged the services of Dr. Rachel Jewelewicz-Nelson, a psychologist. Jewelewicz-Nelson evaluated R.E.Y. However, R.E.Y. did not travel to New Jersey for a scheduled bonding evaluation. Jewelewicz-Nelson conducted a psychological evaluation of J.P.H., and she also performed bonding evaluations between J.P.H. and the child and J.H. and the child.

Before discussing the results of Jewelewicz-Nelson's evaluations and her opinions, we summarize the testimony given at trial by R.E.Y. R.E.Y. felt that T.C.H. was comfortable and happy in her current placement with J.H., and he was content to permit T.C.H. to stay with J.H. until she got older.

R.E.Y. described his residence in Virginia as a spacious two-bedroom apartment. Although he had the same girlfriend there for about four years, he lived alone. His older daughter continued to live with her mother in Morristown, but visited with him during school recesses and stayed in the second bedroom. He foresaw that T.C.H. could eventually stay with him and use the second bedroom, sharing it with his older daughter during her visits.

R.E.Y. had stable employment in the housekeeping department of a major hotel. His work schedule fluctuated significantly. However, he said he had discussed the matter with his supervisor and would be able to adjust his schedule to accommodate custodial parenthood. He earned $400 per week in salary plus tips ranging from about $25 to $100 per week. He was also familiar with a daycare center in the area, but did not know the cost.

R.E.Y. claimed that prior to T.C.H.'s removal from her mother, he saw T.C.H. "on a regular basis every time I came to Jersey." He could not quantify the number of visits, but vaguely referred to three to five trips per year from 2003 to 2005. He said he also kept tabs on T.C.H. through the reports of local friends.

R.E.Y. claimed he did not know he could visit T.C.H. after DYFS gave custody of the child to J.H. This contention was refuted by the DYFS caseworker, who contended that R.E.Y. simply did not take advantage of the opportunity to visit T.C.H. during this time. Further, R.E.Y. said he made no efforts to visit T.C.H. during this time because he was working and did not have the money to travel. He also believed J.P.H. was "doing everything that was possible to get [the child]."

R.E.Y. acknowledged that he never sent money to J.P.H. to assist in supporting T.C.H. He claimed, however, that during the first two and one-half years of T.C.H.'s life, when she was in her mother's custody, he occasionally provided "stuff" for the child. He acknowledged he never sent any money to J.H. to assist with the support of T.C.H. since J.H. received custody.

R.E.Y. did not produce any other witnesses, including experts. J.P.H. did not testify at trial, and she produced no witnesses, including experts.

Jewelewicz-Nelson testified regarding her evaluations of the parties. With respect to J.P.H., she conducted a two- session interview and administered a number of psychological tests. She concluded:

[J.P.H.] is very passive. She tends to wait for others to -- to take care of her, to respond to her needs. And she doesn't really reach out and behave in a proactive manner to seek out services for herself to meet her needs.

[J.P.H.] tends to be very angry. [She] tends to be -- tends to try to be compliant and cooperative and present herself very properly, but at the expense of expressing her inner rage, to the point where sometimes that anger seeps through, and kind of explodes and -- and takes over. So that she may behave in impulsive ways, lacking in anticipation of consequences to her behaviors.

This personality manifested itself in J.P.H.'s history of violence and during the bonding evaluation. For example, J.P.H. did not display overt hostility, but Jewelewicz-Nelson felt J.P.H. exhibited great body control because she knew she was being observed.

Jewelewicz-Nelson also found that there was a high potential that J.P.H. would abuse T.C.H. The case history and the personality questionnaire supported her previous conclusions. She felt that J.P.H.'s underlying anger could lead to child abuse in particular circumstances. Specifically:

[T.C.H.] is a manipulative and demanding child. She has a superficial veneer of being very sweet and very cute. She's very polite. She says her pleases and her thank you's. She smiles very adoringly. She's very sweet, but she's also very insistent. And when she doesn't get her way, she -- I saw in -- in the office in the bonding evaluations that I had with her that she can be very persistent and nag and act out, and express anger and hostility in age-typical ways. But a parent who has the potential to be explosive might try to contain that anger and pacify the child, give into the child, try to negotiate with the child, and when none of that works, there's a potential for an explosion and the lashing out. That would put the child in danger.

Jewelewicz-Nelson felt that T.C.H. required a parent with great patience and the ability to reframe some of T.C.H.'s social interactions to permit her to grow without harm to her psyche. The great aunt possessed these qualities; J.P.H. did not. Jewelewicz-Nelson concluded that the great aunt, not J.P.H., was the "psychological parent." She felt that the child clearly recognized J.P.H. as a familiar person, but there was an underlying anger against J.P.H. that manifested itself in particular challenges to J.P.H.'s supposed parental authority. For example, T.C.H. repeatedly hung up a play telephone when J.P.H. tried to call her and repeatedly slammed play dishes despite J.P.H.'s commands. Jewelewicz-Nelson viewed the relationship between mother and daughter as more "peer-like in its friendliness."

Jewelewicz-Nelson opined that severance of the parental relationship would not cause T.C.H. great psychological harm because it would simply resemble another extended period of absenteeism by J.P.H. On the contrary, T.C.H. would suffer "a profound sense of loss," lose trust in others, and be at risk to act in an antisocial manner like her mother should the court cut short her bond with her great aunt.

With respect to R.E.Y., who presented himself for an initial interview, but not a second session (although he completed the test protocols and questionnaires on another occasion), Jewelewicz-Nelson found his perception of self, and proposed plan to care for T.C.H., to lack credibility. Even without a full second interview and bonding evaluation, she felt that he would not be a fit parent for T.C.H., "mostly because he didn't demonstrate any initiative in establishing a relationship with her and in reaching out to even complete this evaluation as proof positive that he was committed to her." She thought that he was content to let J.P.H. take care of the DYFS business, and to limit his contact with his child to some telephone calls and occasional personal visits. She found this approach self-centered and narcissistic. She noted:

He doesn't have a relationship with her at this point. So he doesn't really have a sense of how challenging she can become, how to best reframe situations for her, how to best massage the situation to allow her to not feel that she's lost when she can't have her way.

And, really he -- he doesn't know anything about her, other than maybe talking to her on the telephone occasionally, but that's not really the same as -- as having 24/7 responsibility for the child.

He failed to demonstrate a clear understanding of what good parenting required. He lacked the parenting skills to deal with a precocious child like T.C.H. Even with the completion of numerous skills courses, there was no guarantee he could be a fit parent. For example, the reunification with R.E.Y. could prove detrimental because T.C.H. was "a very opinionated, strong-willed, manipulative child who has an inflated sense of her own strength and her own power."

Jewelewicz-Nelson concluded that, despite T.C.H.'s knowledge that R.E.Y. is her father, and the absence of another father figure in T.C.H.'s life, the termination of his parental rights would not cause T.C.H. severe psychological harm.

The evidentiary portion of the trial was conducted on January 22, 2007. J.P.H. and R.E.Y. were represented by separate counsel. Initially, J.P.H. did not appear and a default was entered against her. However, J.P.H. arrived at about 10:40 a.m., and the judge vacated the default. Judge Dangler received the testimony of a Division caseworker, R.E.Y., and Jewelewicz-Nelson. He also admitted substantial documentary evidence, including Jewelewicz-Nelson's report, DYFS contact sheets, and other records. Counsel made their summations at the end of the session, and the judge reserved decision until the next day, when he rendered his oral decision on the record. He concluded that DYFS demonstrated by clear and convincing evidence that T.C.H.'s best interests required termination of the parental rights of J.P.H. and R.E.Y. He entered a final judgment on that date. These appeals followed.

The parent-child relationship raises concerns of a constitutional dimension. See Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923). Nonetheless, the right to raise one's child is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid.

To balance these two, at times, countervailing interests, the "best interests of the child" standard, codified at N.J.S.A. 30:4C-15.1a, sets forth the strict criteria the Division must satisfy in order to terminate parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004); In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Specifically, DYFS must show 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 division 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-15.1a.]

These criteria "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. Furthermore, the best interests of the child standard "does not concentrate on a single or isolated harm or past harm as such. . . . [T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

We will defer to the trial judge's factual findings when "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). There should be no interference unless the findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also give due regard to the trial court's unique feel for the case and greater ability to assess witness credibility and qualifications. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); N.J. Div. of Youth & Family Servs. v. D.M.B., 375 N.J. Super. 141, 144 (App. Div.), certif. denied, 183 N.J. 586 (2005). This deferential approach is especially warranted in Family Part cases, because of the judge's "special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413.

Nonetheless, the factual findings warrant judicial interference "where the judge goes so wide of the mark" and "the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (citations and internal quotation marks omitted). Furthermore, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We will address each prong in the analysis and, because "[p]arental rights are individual in nature and due process requires that fitness be evaluated on an individual basis," N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 288 (2007), the analysis of each prong will be addressed separately with respect to J.P.H. and R.E.Y.

The first prong requires DYFS to prove that "[t]he child'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). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Given any child's obvious need for parental attention and care, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379.

There is no requirement that the parent suffer from mental illness, intellectual limitations, or substance abuse prior to the termination of his or her parental rights. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 80 (App. Div. 2003).

Judge Dangler concluded that DYFS proved that T.C.H.'s safety, health or development would continue to be endangered by the maintenance of J.P.H.'s parental rights. This finding was based upon J.P.H.'s inability to find consistent employment and maintain stable housing arrangements. However, contrary to J.P.H.'s contention that these circumstances are nothing more than a consequence of poverty, for which she is being improperly punished, the judge's finding went further. J.P.H. failed to set forth a plan to provide the requisite long-term care for T.C.H. The judge further found, crediting Jewelewicz-Nelson's assessment, that J.P.H. "showed minimal understanding of parenting issues, endorses behaviors and attitudes characteristic of known child abusers." Thus, there was strong evidence to suggest that J.P.H. would abuse her child in certain circumstances. And, J.P.H.'s homelessness was not merely a consequence of poverty but was brought about to a large extent by her own persistent violent behavior, which resulted in her being thrown out of her mother's home and various shelters. When DYFS first became involved in the case, the inability to find a shelter placement that would accept mother and child was occasioned by J.P.H.'s history of assaultive behavior.

With respect to R.E.Y., the judge found that due to R.E.Y.'s continued residence in Virginia, he had little contact with his daughter. He provided no financial assistance, even though he was aware of his paternity of the child since her birth in 2002. The judge credited Jewelewicz-Nelson's conclusion that R.E.Y. "does not seem to have an understanding of children's needs and parent's obligations in parenting." R.E.Y. displayed a narcissistic, casual, and distant approach to his parental obligations. R.E.Y. argues that DYFS never alleged that he abused or neglected T.C.H. He contends that "the trial court failed to take into consideration . . . that [he] is a non-custodial parent of limited means who had relocated out of state in order to secure a better future." Much of this argument relies on the alleged procedural failures by DYFS to find him in Virginia, to notify him of the proceedings, and to permit him to visit his daughter in order to reestablish a parental bond.

This argument is unpersuasive. There never was a parental bond to be reestablished. Although R.E.Y. knew he was T.C.H.'s father from the time of her birth, he never took any steps to include himself as part of her life or to provide financial support. He chose to leave all parental responsibilities to J.P.H., and later to J.H. Judge Dangler found that R.E.Y.'s testimony lacked credibility, a conclusion supported by the record and which we will not disturb. Thus, we accept the finding that R.E.Y. did not visit his child or otherwise attempt to develop an intimate bond with her.

Even R.E.Y.'s geographic distance from T.C.H. can be attributed to the self-centered narcissism identified by Jewelewicz-Nelson. R.E.Y. left New Jersey to better his own life, with little concern for establishing a relationship with or providing for T.C.H.

The second prong required the trial court to determine if J.P.H. and R.E.Y. were "unwilling or unable to eliminate the harm facing the child or [were] unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2). "While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379 (citations omitted); K.H.O., supra, 161 N.J. at 348-49.

Thus, like the first prong, this prong may be satisfied "in a number of ways, including indications of parental dereliction and irresponsible recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care . . . with the resultant neglect and lack of nurture of the child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 117-18 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 180 N.J. 456 (2004). The second statutory criterion explicitly provides that the "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." N.J.S.A. 30:4C-15.1a(2).

Judge Dangler found that J.P.H.'s lack of a plan to care for T.C.H., her extended periods of absenteeism, and her failure to inform DYFS of her activities constituted proof of this prong. The judge also noted that J.P.H. failed to appreciate the effect of her absence on her daughter.

The original harm facing T.C.H. when DYFS became involved in the case was the lack of adequate housing. Yet, J.P.H. failed to secure adequate and stable housing for herself during the entire period of temporary placement. Other than the long periods of time when J.P.H. did not inform either the Division or her family of her whereabouts, J.P.H. chose to live with her mother. DYFS had previously determined that T.C.H. could not stay in the home of J.P.H.'s mother because of the Division's long history of contact with J.P.H.'s mother and the household involving domestic violence and other related problems Furthermore, J.P.H.'s extensive periods of disappearance provided strong evidence of her lack of commitment to provide the needed care and comfort to her young daughter. Notwithstanding J.P.H.'s sporadic contact with T.C.H. and her caretaker, her failure to keep the Division and her family informed of her whereabouts provides further evidence of satisfaction of the second prong by failing to provide a safe and stable home for T.C.H.

With respect to R.E.Y., the judge found it significant that he refused to see his daughter outside of a few brief visits at a local park, despite the fact that J.H. welcomed R.E.Y.'s visits and the fact that R.E.Y.'s older daughter, who R.E.Y. purportedly visited periodically, lived in very close proximity to J.H. Further, the judge found it significant that R.E.Y. provided no financial assistance and was content to permit J.H. to raise T.C.H.

The court declined to credit R.E.Y.'s "11th hour plan" to provide a comfortable environment for his daughter in Virginia. The judge refused to consider the plan viable. This finding is supported by substantial credible evidence in the record. For example, R.E.Y. could not adequately explain how, with his varied work schedule and modest income, he could be a custodial parent of this young child. More importantly, his failure to have ever reached out during T.C.H.'s life to establish any contact or develop any relationship with her, combined with his willingness and express desire to allow her to remain with her great aunt until some unspecified later time, and his acknowledgment that he was not presently ready to assume custody of T.C.H., weigh heavily against the suggested viability of R.E.Y.'s plan.

As with the first prong, we are satisfied that there was adequate evidence to support the judge's conclusion that R.E.Y.'s continued withholding of parental attention from his daughter satisfied the second prong. Further, the evidence does not support R.E.Y.'s claim that the psychological harm from the termination of the foster parent relationship would be minimal. We have no occasion to disturb the judge's reliance on Jewelewicz-Nelson's unrebutted expert opinion to the contrary. See C.S., supra, 367 N.J. Super. at 115-16 (finding that the gradual emersion of the child into the biological parent's life did not serve the child's best interest). The approach suggested by R.E.Y. would prove detrimental to T.C.H.'s need for permanent placement. Id. at 116; see K.H.O., supra, 161 N.J. at 357-58 ("In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor. The trend over the last thirty years has been towards foster care reforms that place limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification." (citations omitted)).

The third prong requires DYFS to show by clear and convincing evidence that it "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1c defines "reasonable efforts" to be "attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure."

It is clear that the Division's refusal "to provide or allow an able and willing parent contact with her child is tantamount to a unilateral displacement of the biological parent, which is impermissible without judicial approval." D.M.H., supra, 161 N.J. at 389. However, when DYFS does act, the reasonableness of its efforts are not determined by their success. Id. at 393. Rather, such efforts "must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid. The parent must make an active attempt to comply with the recommended services. Id. at 390.

Judge Dangler concluded that DYFS made reasonable efforts to assist J.P.H. in addressing housing issues, anger management counseling, therapy, substance abuse evaluation, and assistance with visitation. He noted the ongoing difficulty encountered by the Division to locate J.P.H. for extended periods of time and her failure to apprise the Division of her whereabouts. When DYFS offered to arrange various services for J.P.H. in September and October 2006, she did not respond, or rejected the services. The judge noted that J.P.H. failed to take advantage of her opportunities to visit her daughter, finding that she saw her daughter only about ten times since T.C.H.'s placement with J.H.

J.P.H. argues that the Division failed to make reasonable efforts to find her adequate housing to cure the initial problem leading to T.C.H.'s placement. She contends that her mother's house did not present harm to T.C.H. Thus, she argues that the Division actually interfered with possible housing arrangements. However, the record demonstrates that the Division was frustrated in its efforts because of J.P.H.'s extended absenteeism and refusal to provide contact information. The record supports the judge's conclusion that the Division made reasonable efforts to alleviate the conditions that led to the child's removal and to encourage reunification with her mother. The evidence supports the conclusion that J.P.H. persistently refused to accept services from DYFS when offered. See K.H.O., supra, 161 N.J. at 354 (concluding that DYFS made reasonable efforts where it encouraged visits, provided drug treatment programs, and attempted to find relatives to care for the child).

Judge Dangler found that DYFS offered R.E.Y. the opportunity to visit T.C.H. since the day they located him in Virginia. R.E.Y. rarely took advantage of the opportunity. Despite financial assistance from DYFS, he visited T.C.H. only two times after her initial placement with J.H. We reject R.E.Y.'s argument that DYFS failed to offer reasonable services to him and that DYFS dragged its feet in its efforts to procure the interstate home evaluation and to provide him with proper funding to visit T.C.H. On the contrary, the Division provided financial assistance for travel, even when confronted with a misleading or outright fraudulent submission requesting reimbursement. The evidence supports Judge Dangler's conclusion that R.E.Y. rarely took advantage of the open opportunity to visit T.C.H. Instead, R.E.Y. preferred to organize trips to New Jersey on his own. R.E.Y. did not make himself readily accessible to the Division, which was frustrated in its frequent attempts to contact him. Further, the Division acted reasonably and promptly in its efforts to initiate and facilitate the interstate evaluation. Assuming the evaluation would have reflected positively on R.E.Y. when concluded, the result here would not have been different in light of all of the other circumstances militating against R.E.Y.'s willingness and ability to parent T.C.H.

Under the third prong, the court must also conclude that there are no viable alternatives to termination of the parental relationship. Judge Dangler found with respect to both parents that no alternative to termination was available. Although the judge did not elaborate further, we agree with his conclusion. Both parents argue on appeal that kinship legal guardianship should have been considered. However, in light of T.C.H.'s young age and J.H.'s willingness and preference to adopt, kinship legal guardianship was not an appropriate alternative in this case. N.J.S.A. 3B:12A-6d(3)(b); P.P., supra, 180 N.J. at 510-13.

The fourth prong of the "best interests" determination requires proof that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). To perform the difficult balancing of the relative harm and benefit to the child, "the court must inquire into the child's relationship both with her biological parents and her foster parents." K.H.O., supra, 161 N.J. at 355. It is unrealistic to require DYFS to demonstrate that the severance of the parent-child bond will result in no harm; rather, the court must carefully weigh the potential harm caused by the termination of the parental relationship against "that which might come from removing her from her foster home." J.C., supra, 129 N.J. at 25; see K.H.O., supra, 161 N.J. at 355. "[T]he State should offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation'" of the relative strength of each relationship. M.M., supra, 189 N.J. at 281 (quoting J.C., supra, 129 N.J. at 19).

To analyze this prong, Judge Dangler relied on Jewelewicz-Nelson's evaluations of J.P.H. and R.E.Y. and the bonding evaluations. He credited the conclusion that T.C.H. shared a strong bond with her great aunt, who Jewelewicz-Nelson identified as T.C.H.'s psychological parent. The judge pointed to the lack of a mother-daughter bond between J.P.H. and T.C.H. The judge concluded that severance of the relationship between T.C.H. and her great aunt would cause extreme harm to the child. The child required permanency and stability that could only come with fulfillment of her great aunt's wish to adopt her.

We reject J.P.H.'s argument that the judge relied on speculative and unrealistic expert opinion in disposing of the fourth prong. We find unpersuasive J.P.H.'s argument that the Division improperly desired to place T.C.H. with the "better" caretaker.

Jewelewicz-Nelson conducted a number of psychological tests, the results of which, combined with Jewelewicz-Nelson's review of pertinent materials and personal interviews and clinical assessment of J.P.H., provided the basis for her conclusion that J.P.H. was unfit and that termination of the parental relationship with J.P.H. would not be detrimental to T.C.H.

With respect to R.E.Y., notwithstanding the absence of a bonding evaluation (which R.E.Y. failed to attend), it is clear that there was no father-daughter relationship between R.E.Y. and T.C.H. By the time of trial, T.C.H. was four years old, and although she knew and acknowledged R.E.Y. by the title of "father," R.E.Y. had never been a part of his daughter's life. His sporadic and brief contacts with her could not possibly have forged a parent-child bond. The absence of such a bond was well corroborated by other credible evidence in the record, which further supports the judge's finding in that regard. Thus, Jewelewicz-Nelson's conclusion that termination of R.E.Y.'s parental rights, in favor of adoption by J.H., would not do more harm than good is supported by the record.

We are therefore satisfied that the record supports, both factually and legally, Judge Dangler's conclusion that the Division clearly and convincingly established all four prongs of the best interests test with respect to both parents.

We next address J.P.H.'s argument that she was denied her equal protection rights under the federal and state constitutions. She claims she suffered from disparate treatment because the Division's presumption that homelessness was equated with neglect was arbitrary and capricious. We reject this argument. New Jersey's termination statute does not discriminate between groups in its purpose or effect. The termination here was a result of factors specific to J.P.H. and relevant to the four-prong best interests test. These factors included J.P.H.'s history of violent behavior, her transient lifestyle, her disappearance for extended periods of time, and failure to comply with offered services. The termination was not based upon J.P.H.'s poverty. There was no equal protection violation here. This argument lacks sufficient merit to require further discussion. R. 2:11-3(e)(1)(E).

Next, we address J.P.H.'s argument that she was deprived of due process by the judge's improper admission in evidence of Jewelewicz-Nelson's report and certain DYFS contact sheets because they were furnished on the eve of trial. The contact sheets detailed interactions between the Division and the parties between May 2, 2006 and January 2007. The Deputy Attorney General (DAG) representing DYFS represented that she received these supplemental contact sheets the Friday prior to the Monday trial, and she furnished them to counsel the morning of trial. Jewelewicz-Nelson's report was dated January 10, 2007. The DAG representing DYFS represented that she received it on the Friday before the Monday trial and faxed it to both counsel that Friday.

Reports and records such as these are required to be provided to the court and counsel for all parties on the first return date of the order to show cause, if then available, or "as soon as practicable" after they become available. R. 5:12-3. J.P.H. argued that these documents were not furnished as soon as practicable after they became available, that she was prejudiced as a result of the late discovery, and the judge mistakenly exercised his discretion in admitting the documents in evidence over her objection at trial.

We will not interfere with a trial judge's discovery decision absent a mistaken exercise of discretion. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002); Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997).

The expert report was furnished promptly upon its receipt by the DAG. J.P.H. was well aware that Jewelewicz-Nelson would testify at trial and did not object to her testimony. Indeed, J.P.H.'s counsel effectively cross-examined Jewelewicz-Nelson, using information in the report advantageously in the process. At the conclusion of Jewelewicz-Nelson's testimony, the DAG offered the report in evidence. When J.P.H.'s attorney objected because the report had only been furnished the previous Friday, the judge inquired whether J.P.H.'s attorney had an expert with whom he was planning to consult. Counsel responded, "I have an expert that I could have consulted with, with this report, Your Honor." (emphasis added). Counsel's equivocal comment that he had an expert he "could" have consulted with was insufficient to establish prejudice. Indeed, as we have stated, counsel did not object to Jewelewicz-Nelson's testimony based upon the late delivery of her report or on any other basis. And, the contents of the report were consistent with Jewelewicz-Nelson's testimony, to which there was no objection. Considering all of the circumstances, we find no mistaken exercise of discretion in the admission of the report.

Sometime in advance of trial, counsel apparently were furnished with contact sheets for dates prior to those in dispute. The additional notes contained updated information. Because these notes are presumably created on an ongoing basis as the contacts occur, most of them were obviously available earlier than the day of trial. They should have been furnished sooner. However, J.P.H. has failed to demonstrate how she was surprised or otherwise prejudiced by any of the information in these contact sheets. We do not find a mistaken exercise of discretion in admitting the documents, and we further observe that if there was any error, considering the totality of evidence in the case, the result would not have been different. Therefore, if there was error, it was harmless.

In her reply brief, J.P.H. further asserts that she was denied the effective assistance of counsel. The argument provides no basis for relief because appellate counsel has failed to provide a detailed exposition of how trial counsel fell short and why the result would have been different if trial counsel's performance had not been deficient, nor has any evidentiary proffer beyond the contents of the trial record been submitted. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).

Affirmed.

(continued)

(continued)

35

A-3330-06T4

RECORD IMPOUNDED

December 7, 2007