NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R IN THE MATTER OF THE GUARDIANSHIP OF K.R.S Minor

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3425-08T43425-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.R.S.,

Minor.

________________________________________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Carchman, Lihotz and

Ashrafi.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, Docket No. FG-14-34-08.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Janet A. Allegro,

Designated Counsel, of counsel and on

the brief).

Anne Milgram, Attorney General, attorney

for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Lea C. DeGuilo, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor (Maria Emilia

Borges, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

Defendant A.R. appeals from a final judgment of the Family Part terminating his parental rights and granting guardianship of his daughter K.R.S. to plaintiff New Jersey Division of Youth and Family Services (DYFS). We affirm.

These are the relevant facts adduced at the trial. K.R.S., born on July 14, 2006, is the child of defendant and J.S. At the time of K.R.S.'s birth, J.S. was in methadone treatment, and as a result, K.R.S. tested positive for methadone. DYFS had contact with J.S. when she was pregnant with K.R.S. as a result of aberrant comments about aborting the child, hospitalization, confirmed drug use, misuse of alcohol, as well as physical abuse by defendant. The precipitating event for DYFS's continued involvement with the family occurred as a result of an October 30, 2006 automobile accident wherein J.S. was arrested for driving while intoxicated while K.R.S. was in the vehicle. Neither party suffered any injury, but J.S.'s blood tests revealed a blood-alcohol reading of 0.23.

Defendant acknowledged he and J.S. had engaged in a heated argument, he "had a feeling that she was drunk," and he knew she had left with K.R.S. He did not seek to find them after they left or alert police that J.S. might be driving while intoxicated with his infant daughter in the car. After learning of the accident, defendant walked to the hospital. Upon arrival, he was interviewed by police, who discovered there was an outstanding warrant for his arrest on immigration violations. Defendant was placed under arrest, at which time DYFS decided not to "pursue him as a caregiver for [K.R.S.]."

J.S. confirmed the verbal altercation and stated she was attempting to take K.R.S. to her mother's house. She claimed responsibility for her actions but seemed unable to appreciate their consequences:

[J.S.] admitted to speeding and losing control of the car. She understands that she could have killed her baby and is upset. She didn't understand why the baby was [not] going to be returned to her custody tonight. . . . She said that she usually doesn't drink, but was stressed about fighting with [defendant] . . . . She first didn't want to say goodbye to the baby, but changed her mind.

Because both parents were arrested, DYFS effectuated an emergency removal of K.R.S. pursuant to N.J.S.A. 9:6-8.29 -.30. Defendant and J.S. were personally served notice of the removal but refused to sign the corresponding acknowledgment. At this time, DYFS spoke with J.S.'s sister, T.S., and the maternal grandmother, E.S., to explore their acceptability as a temporary placement for K.R.S. T.S. and E.S. lived together, and a home evaluation was conducted, which found their residence "cluttered." Otherwise the home was conducive to raising a child. A DYFS records check revealed a referral and case against E.S. which was closed in 1993 due to lack of substantiation. All other criminal background checks came back negative, and K.R.S. was placed with E.S. and T.S. on October 31, 2006.

Pursuant to N.J.S.A. 9:6-8.30, on November 2, 2006, DYFS petitioned for and received a court order providing DYFS with legal custody of K.R.S., while E.S. and T.S. obtained physical custody. The court also ordered that defendant and J.S. be allowed "reasonably liberal" supervised visitation with K.R.S. Defendant was incarcerated at the time of this hearing, and the implementation of the order as to him was not specifically addressed.

In March 2007, J.S. provided a DYFS caseworker with the name and address of defendant's mother in Mexico and asked that she "be explored as a placement."

Meanwhile, J.S. showed significant improvement throughout much of 2007. At a compliance review hearing in October, the court permitted J.S. to resume overnight visitation with K.R.S. The resulting Permanency Order approved DYFS's plan to reunify K.R.S. with J.S. in three months.

However, J.S. suffered a relapse that continued unabated. J.S.'s participation with rehabilitation services became sporadic, as did her scheduled visitation with K.R.S. T.S. agreed to adopt K.R.S. if reunification could not be accomplished. On January 28, 2008, DYFS began pursuing termination of J.S.'s and defendant's parental rights. At a February 2008 permanency review hearing, the judge concluded that reunification would no longer be appropriate and ordered DYFS to submit a new permanency plan for K.R.S. within forty-five days. He also ordered that J.S., who did not appear in court, submit to a hair follicle test, which proved positive for heroin and morphine.

On March 12, a DYFS caseworker met with J.S. to inform her of the result of the test and that the Division would move for termination of her parental rights. At a permanency hearing held on March 20, DYFS presented its new permanency plan seeking to terminate both J.S.'s and defendant's parental rights and allow T.S. to adopt K.R.S. The judge approved this plan, and DYFS proceeded to file a complaint and order to show cause.

In September 2008, the court and counsel addressed the issue of defendant's appearance at trial. Counsel requested an order requiring transport for trial. The judge was informed that if the Sheriff's office transported defendant from his federal holding facility, he would be released for that purpose.

On October 23, 2008, defendant sought to delay trial to schedule an expert examination. The Law Guardian objected to any further adjournment, noting that:

I'd like to know what a psychological evaluation is going to provide for us that's going to make any difference . . . . He is unavailable and he's been unavailable . . . to parent this child. And he certainly won't be able once he's deported[.] . . . . I'm not quite certain what a psychological evaluation is going to do.

In the meantime, this child, who has now been in placement for 24 months, to adjourn this trial yet again . . . would be incredibly harmful to her and would serve no purpose.

On January 26, 2009, J.S. executed an identified surrender of K.R.S. Since defendant was in federal custody, and the trial was considered a civil matter, the court had "extreme difficulty" in obtaining a writ to release defendant for trial, and even if the court did obtain a writ, it is unclear that it would have been honored. Instead, the court arranged for defendant to be available via telephone hook-up for one hour. The trial was originally scheduled for January 28, 2009, but defendant was unable to appear by phone on that date, and the matter was rescheduled to February 18, 2009.

After entering his appearance, defense counsel moved for an adjournment because defendant "feels that he cannot be effectively represented via telephone." Judge Critchley denied this motion on the grounds that applicable federal regulations would have required defendant to complete his sentence before making any physical appearance, and this was not projected to occur until December 18, 2009. Additionally, the likelihood of defendant's deportation made the prospect of his appearance unlikely.

At trial, DYFS caseworker Ana Vergara indicated that she had met with defendant in prison on October 20, 2008. During that meeting, Ms. Vergara updated defendant as to the status of the case, and defendant, through counsel, provided Ms. Vergara with the name, address and telephone number of his mother in Mexico. Defendant asked that his mother be explored as a possible placement for K.R.S. Ms. Vergara conceded that DYFS did not want to place K.R.S. elsewhere because she was "very bond[ed] with her family right now." However, the caseworker did pursue defendant's mother as a possible placement.

Ms. Vergara also discussed the findings of a psychological evaluation of defendant and a bonding evaluation of E.S., T.S. and K.R.S. conducted by DYFS, both of which recommended K.R.S. remain with T.S. Ms. Vergara "encourage[d] the caretakers to respond to [defendant]" and understood that "they did, indeed . . . respond to his letters and provide photos[.]"

Defendant then related to the court his actions on the night of the car accident, the circumstances surrounding his arrest and incarceration as well as his plans for K.R.S. upon release and likely deportation. He acknowledged his awareness of J.S.'s intoxication when she left the apartment with K.R.S. the night of the crash, the two previous reported incidents of domestic violence with J.S. and his need to have E.S. and T.S. continue to care for K.R.S. until his scheduled arrival in Mexico in December 2009.

Prior to summations, Judge Critchley stated:

. . . I think the crystal clear problem is he has been incarcerated since, essentially, a day after the removal. He remains incarcerated today. And the prospects . . . are that he'll remain incarcerated until November of this year, be returned to Mexico and faces a 15-year . . . sentence if he should return again illegally . . . .

So in that context, it's hard for me to understand how I can't terminate his parental rights[.]

At the conclusion of the trial, the court found that DYFS had established the statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and noted that defendant's incarceration and looming deportation constituted constructive abandonment such that the "best interest of the child" test of N.J.S.A. 30:4C-15.1(a) counseled in favor of termination.

This appeal followed.

On appeal, defendant asserts that DYFS failed to meet its burden under the statute, that the failure to produce defendant for trial violated his rights of due process, that defendant was denied effective assistance of counsel and that the court erred by failing to adjourn the proceedings to have defendant produced and to complete a home study for consideration of defendant's mother in Mexico as an appropriate placement.

We first address the standard of review. The Supreme Court has "recognize[d] that '[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. G.M. (In re K.M.), 198 N.J. 382, 396 (2009) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). See also N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009) (noting that "we must afford great deference to the Family Part's findings of fact and conclusions of law based on those findings"). We will "uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In Re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

We now restate basic principles that are relevant to our consideration of this appeal. "[A] parent's right to raise a child and maintain a relationship with that child is constitutionally protected under the federal and state Constitutions." A.R., supra, 405 N.J. Super. at 434 (internal quotations and citations omitted). See also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, those rights "are not absolute, and 'must be balanced against the State's parens patriae responsibility to protect the welfare of children.'" G.M., supra, 198 N.J. at 397 (quoting D.Y.F.S. v. G.L., 191 N.J. 596, 605 (2007)). In order to balance parental rights and the State's interest in protecting the welfare of children, courts are to apply the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. Pursuant to N.J.S.A. 30:4C-15.1(a), parental rights may be terminated when the following standards are met:

(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-15.1(a).]

These four standards or prongs are not "discrete, but rather relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." A.R., supra, 405 N.J. Super. at 434 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008) (citing K.H.O., supra, 161 N.J. at 348)) (internal quotations omitted). The Division has the burden to prove by clear and convincing evidence that the parental rights should be terminated. E.P., supra, 196 N.J. at 103; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); A.R., supra, 405 N.J. Super. at 434; N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 276 (App. Div.), certif. denied, 196 N.J. 347 (2008).

We now address the specific issues raised here. With regards to the first prong, "[h]arm . . . involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "'[T]he harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 352). A court does not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986)).

This prong is not limited to physical harm, but also encompasses psychological and developmental injury. In the Matter of the Guardianship of R., G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). Specific examples include the extended withdrawal by the parent of solicitude, nurture and care, as well as a pattern of inattention to a child's needs, which frequently leads to bonded relationships with foster parents, the severance of which would cause the child harm. D.M.H., supra, 161 N.J. at 379; N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).

Incarceration of a parent is a relevant, although not dispositive, factor. Such confinement may "be a substantial obstacle to achieving permanency, security and stability" for the child. In the Matter of Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993). While defendant is correct that L.A.S. mandates a broad inquiry regarding the nature of the relationship between an incarcerated parent and his child, id. at 143-44, the relevance of this inquiry diminishes where there is no pre-existing relationship to examine. Id. at 139 (stating that "once a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered").

Defendant has been incarcerated for all but three months of K.R.S.'s life. When he is released from prison, he will be deported to Mexico. Should he return again to the United States, he faces a fifteen-year prison sentence.

Defendant's imprisonment, along with the many problems faced by J.S., has led K.R.S. to develop a strong bonded relationship with T.S., her maternal aunt. Breaking this bond is likely to cause K.R.S. significant long-term harm. Here, we have a parent who has not fulfilled any of the parental responsibilities attendant to a parent. Defendant's incarceration has deprived K.R.S. of any parental "solicitude, nurtur[ing] or care" and has created a harm to the child.

Substantial and credible evidence in the record supports the court's conclusion that K.R.S.'s health, safety and development were harmed by her relationship with A.R.

We now focus on the second prong. "'[T]he focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs.'" A.R., supra, 405 N.J. Super. at 434-35 (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007)). "The fact that the parents may be morally blameless in this unfortunate situation is not conclusive on the issue of permanent custody." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001) (quoting R.,G. and F., supra, 155 N.J. Super. at 194-95), certif. denied, 171 N.J. 44 (2002). This prong "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child[.]" K.H.O., supra, 161 N.J. at 348.

Defendant is scheduled to be incarcerated until December 2009. Upon his release, he will be deported to Mexico. If he returns to the United States, defendant faces a fifteen-year prison sentence. As long as K.R.S. remains in this country, a result defendant has encouraged, there is nothing he can do to provide a "safe and stable home" for her. His desire to do so does little to accomplish the objective needs of his child.

Further delay in providing K.R.S. a permanent placement is also likely to cause significant harm. As the court noted:

[A] delay in permanent placement will add to the harm. And I'll note that we're talking about not a possible reunification that could, for example, start in the near future . . . but one that at the earliest, we're talking, essentially, December of this year, and that is after a parole and a deportation, and then the question of establishing a life again after years of incarceration in Mexico.

K.R.S. is now three years old and for nearly thirty-eight months has known only the stability of T.S.'s home. She has developed a strong bond with her presumptive adoptive parent.

Substantial and credible evidence in the record supports the court's conclusion that defendant is unable to eliminate the harm facing K.R.S., and delaying permanent placement will only add to that harm.

As to the third prong, the general rule is that

[i]n any case in which the Division accepts the care or custody of a child, "the [D]ivision shall make reasonable efforts, prior to placement, to preserve the family in order to prevent the need for removing the child from his home." N.J.S.A. 9:6-8.8(b)(2). Even after placement, "the [D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home." Ibid.
 
[G.M., supra, 198 N.J. at 398.]

The inquiry focuses on what efforts, if any, DYFS has undertaken to facilitate family reunification and assist a parent in "correct[ing] and overcom[ing] those circumstances that necessitated placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. The statute lists four non-exclusive methods by which "reasonable efforts" may be established:

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

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

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

DYFS's efforts are to be reviewed in light of the facts and circumstances of each particular case. D.M.H., supra, 161 N.J. at 390. Likewise, they are not to be judged on the success or failure of a parent to respond to services. Id. at 393.

There is no dispute that DYFS attempted to provide defendant with services in the months between K.R.S.'s birth and his incarceration in October 2006. Specifically, DYFS developed a case plan providing for his participation in the "Abuse Ceases Today" (ACT) program. At trial, A.R. acknowledged meeting and speaking with Division caseworkers during this time.

However, the statutory standards refer to efforts undertaken by DYFS after the child has been placed into foster care. Defendant's incarceration has been concurrent with K.R.S.'s foster placement. While DYFS's actions in this regard were thus hampered by "'the difficulty and likely futility of providing services to a person in custody[,]'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super 576, 621 (App. Div.) (quoting N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006)), certif. denied, 192 N.J. 68 (2007), few efforts were made by DYFS during the first two years of incarceration to update defendant as to either K.R.S.'s "progress, development and health" or the status of the litigation.

Judge Critchley focused on defendant's incarceration in finding that:

The problem is his availability and all of what I've already discussed in terms of the incarceration situation. So it really wasn't a question of providing services to correct character or education deficits, so much as just the question, the fundamental question of availability or the converse constructive abandonment. So that element of the third prong is, I think, established by the circumstances.

The court also examined the two potential alternatives to the termination of parental rights put forward by defense counsel: either having K.R.S. immediately transferred to Mexico to await defendant's deportation or to continue temporary care with E.S. and T.S. until defendant arrives in Mexico. Citing concerns with the time frame presented by both options, the degree of bonding K.R.S. already shared with her maternal relatives and the language and cultural barriers K.R.S. would face in Mexico, Judge Critchley correctly found both alternatives untenable.

We conclude that Judge Critchley's findings as to this prong are not so "insupportable as to result in a denial of justice." J.T., supra, 269 N.J. Super. at 188 (quoting Rova Farms Resorts, Inc. v. Investors of America, 65 N.J. 474, 483-84 (1974)). Considering the undesirable alternatives to termination presented, we conclude that the best interests of the child are served by affirming the determination. See F.H., supra, 389 N.J. Super. at 621 (holding that even if the DYFS's efforts had been insufficient, reversal would be unwarranted as the best interest of the child).

We lastly address the fourth prong. This prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The Court has noted that it "is widely understood that a `child deeply needs association with a nurturing adult' and that `permanence in itself is an important part of that nurture.'" Ibid. (quoting A.W., supra, 103 N.J. at 610).

The strong public policy of New Jersey favors permanency of child placement. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004). See, e.g., N.J.S.A. 30:4C-11.1. We have previously observed,

Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997, the emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement.

 
[N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209-210 (App. Div.) (internal quotations, footnotes and editing marks omitted) (citing C.S., supra, 367 N.J. Super. at 111), certif. denied, 192 N.J. 293 (2007).]

This prong focuses on whether the child will "suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. Although temporary foster-parent bonding is generally insufficient to justify termination of parental rights, In the Matter of the Guardianship of J.C., 129 N.J. 1, 19 (1992); N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 432 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992), exceptions are made where separating the child would "threaten 'serious and enduring emotional or psychological harm.'" B.G.S., supra, 291 N.J. Super. at 593 (quoting J.C., supra, 129 N.J. at 19).

Judge Critchley found the length of time K.R.S. had spent with her foster parents and the necessary remoteness of any possible reunification made such harm likely:

[T]here would be harm in terms of not granting the guardianship, because at least in terms of if [sic] a reunification plan of one type or another was identified as the goal after trial, the necessary result of that would be separation from the maternal aunt and the psychological parent, who has been the caretaker for most of the child's life and certainly from shortly after, if not immediately after, the removal. That kind of harm is frequently is [sic] identified in our cases as substantial, material, traumatic and enduring . . . .

So the notion of removing the child from the psychological parent for some plan, whose weaknesses I've already identified, I think it's clear that that would do more harm than good.

Here, K.R.S. has no relationship with her father. She does, however, have a deeply bonded relationship with her maternal aunt. In such a situation, termination of parental rights will not do more harm than good. We will not disturb Judge Critchley's findings.

Defendant next argues that his due process rights were violated. In determining whether such rights have been impaired and whether the procedures underlying State action have improperly deprived an individual of a liberty or property interest, defendant urges that we apply the multi-prong test enunciated by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (the 'Eldridge' test). That test requires a balancing of (1) the private interest affected by State action; (2) the risk the procedures used might lead to an erroneous result and the probable value of any additional or qualitatively different procedures which might have been used; and (3) an evaluation of the relevant government interest, including the costs and other burdens of adopting new procedures. Eldridge, supra, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33; see also In the Matter of C.A., 146 N.J. 71, 93 (1996). Though initially used to determine the sufficiency of process for receipt of government benefits, the Eldridge test "can also be applied to evaluate the due process qualities of procedures used by a trial court in place of more traditional trial processes . . . to cope with circumstantial exigency." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 465 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). In such cases, the precise nature of participation is generally left to the sound discretion of the trial judge. Id. at 468.

"[P]rocedural requirements are more demanding in parental termination cases than in ordinary civil actions[.]" Id. at 467. However, we also noted parental termination actions are civil in nature, and "[t]he requirements of due process do not confer a constitutional right of confrontation or mandate a parent's presence at the trial." Ibid.

The first prong of the Eldridge test requires identification of the private interest subject to State action. The United States Supreme Court has held the rights of parents in the care and custody of their children constitute fundamental liberty interests protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Similarly, the New Jersey Supreme Court has consistently held that the termination of parental rights implicates protected interests under the United States Constitution. In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999); K.H.O., supra, 161 N.J. at 346-47.

With regard to the second prong of the Eldridge test, the inquiry is "whether the process afforded adequate protection to the party's interests, and if not, whether additional procedural safeguards were available that would have sufficed." M.Y.J.P., supra, 360 N.J. Super. at 466 (citing Matter of Allegations of Sexual Abuse at East Park High Sch., 314 N.J. Super. 149, 164 (App. Div. 1998)).

Here, the procedures crafted by Judge Critchley in light of circumstances largely beyond his control were sufficient to protect defendant's interests. Defendant was given notice of the proceeding, represented by counsel and given the opportunity to testify and monitor the hearing via telephone. He was provided with the opportunity to speak privately with counsel. His credibility was not prejudiced by his absence. Additionally, the judge made significant efforts to secure defendant's appearance notwithstanding the lack of cooperation from federal authorities. In light of the federal authorities' refusal to produce defendant, Judge Critchley utilized the appropriate alternative methodology to permit defendant to participate in the hearing. Further delay resulting in lack of a permanent placement for K.R.S. was not a viable alternative.

Finally, the third Eldridge prong implicates the State's interests, which in this case are multifaceted. We recognize that immigration and national security issues were raised by the federal officials, but as important, the State's role as parens patriae would be compromised by a delay that may not have had an end date and ultimately impacted on the interests of K.R.S. The judge utilized a procedure that insured that defendant would participate in a meaningful way and protect his rights of due process. We find no error in the trial procedures implemented by Judge Critchley.

Lastly, as to defendant's claims that the court erred in suspending his visitation rights, his claim that his counsel was ineffective and that the court erred by not adjourning the matter to complete a Mexican home study, we conclude that these arguments are devoid of merit. R. 2:11-3(e)(1)(E).

Specifically, as to counsel, the thrust of defendant's argument focuses on defendant's physical absence from the trial. We have previously commented on this issue but counsel took all reasonable steps to attempt to produce defendant. The intransigence of the federal officials to agree to such production cannot be visited on counsel. He acted properly and professionally in his attempts to secure defendant for the trial.

We likewise conclude that the failure to continue the matter pending the Mexican home study was not error. While the request may have been made earlier, it appears that there was little cooperation by both the maternal grandmother and the Mexican authorities.

Judge Critchley properly concluded that DYFS had met its burden by clear and convincing evidence, and we perceive no basis for our intervention.

 
Affirmed.

From the commencement of the action, defendant was not present or represented for seven hearings from November 2006 to March 2008.

The consideration of defendant's mother as a potential placement was disputed, and the parties suggest that her name did not emerge until October 2008. As we discuss, infra, placement of the child in Mexico was not a viable alternative.

According to the Federal Bureau of Prison's website, his current release date is January 10, 2010.

While the federal prison did have teleconferencing capability, its regulations provided that inmates could only use the technology in one-hour increments. Judge Critchley found this impractical, and we do not disagree.

We do not suggest that the federal officials acted inappropriately; however, it is clear that defendant was not going to be released for this trial.

(continued)

(continued)

16

A-3425-08T4

RECORD IMPOUNDED

November 12, 2009