NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.H. and S.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4211-08T44211-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.H.,

Defendant,

and

S.H.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF S.H.H.,

Minor.

_______________________________

 

Submitted November 30, 2009 - Decided

Before Judges Rodr guez, Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-199-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Theresa A. Nitti, Designated Counsel, of counsel and on the brief; Adrienne Kalosieh, Assistant Deputy Public Defender, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Emily Weisslitz, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor S.H.H. (Todd Wilson, Designated Counsel, of counsel and on the brief).

PER CURIAM

Defendant S.H appeals from an order dated April 2, 2009, terminating his parental rights to his son, to whom we will refer here as S.H.H. We affirm, substantially for the reasons set forth in Judge John Callahan's oral opinion of the same date.

I

The pertinent facts are set forth at length in Judge Callahan's opinion. We summarize them here. The child was born on June 8, 2006 to M.H., who had used illegal drugs while pregnant and had no prenatal care. At birth, S.H.H. was fifteen weeks premature, weighing a little over one pound. He has "global developmental delays" as well as physical disabilities. Upon the child's release from the hospital in September 2006, the Division of Youth and Family Services (Division or DYFS) obtained custody and placed him in foster care.

Defendant was incarcerated from July 2006 until January 2008, and had no contact with his son while in prison. Defendant had several visits with the child after his release, between March 12, 2008 and June 5, 2008. However, on June 5, 2008, defendant advised the Division case worker that he would not attend any more visits with his son because he was about to become a fugitive. Defendant was rearrested on a parole violation in September 2008, and he was still incarcerated at the time of the termination hearing. The Division explored the possibility of placing S.H.H. with defendant's relatives or with several maternal relatives, but these individuals either never responded to the agency's contacts or were ruled out as inappropriate.

Because S.H. was either incarcerated or a fugitive during most of his son's life, DYFS primarily focused its efforts on providing "a multitude of services" to the mother, M.H. However, due to her inability or unwillingness to comply with the services the Division offered, M.H. eventually voluntarily surrendered her parental rights.

When not incarcerated or a fugitive, S.H. had some visits with his son. However, the State's expert, Dr. Brown, testified that due to the minimal contact between S.H. and his son, then age two, there was no possibility of a parent-child bond having developed between them. Consequently, no bonding evaluation was done.

S.H. has a history of drug problems. In addition, Dr. Brown diagnosed S.H. as mildly mentally retarded. Brown concluded:

The present assessment portrays [S.H.] as cognitively limited, immature, with poor impulse control, poor insight, feelings of less competence, less self-control, poor adaptability, and with few appropriate assertiveness skills. [S.H.] has accomplished very little in his adult life and he demonstrates poor ability to sustain conventional social function free of imposed institutionalized structure and supervision. The likelihood that [S.H.] will be a repeat offender and re-incarcerated in the future should be considered high.

At the time of the termination hearing, S.H. was incarcerated, had never held a job, and had no realistic prospects for being able to care for the child. Meanwhile, according to the Division caseworker, the child was "thriving" in a SHPS placement. The agency's permanency plan was for select home adoption. Although an earlier foster placement fell through, the Division had identified "five potential families that would be able to meet [his] needs."

II

In a comprehensive oral opinion placed on the record on April 2, 2009, Judge Callahan determined that the Division had satisfied the four prongs of the best interests standard. N.J.S.A. 30:4C-15.1a. With regard to the first prong, the judge found by clear and convincing evidence that S.H.'s relationship endangered or "will continue to endanger" S.H.H. The judge found that S.H.'s "prior . . . drug-related" conduct and "managing to get himself rearrested" for assaulting an officer of the law "pose[d] a safety consideration for potential placement of S.H.H." In addition, the judge found that S.H.'s being "totally unavailable to his son" during the fifteen months that S.H. was incarcerated, beginning a short time after S.H.H. was released from the hospital, served as further evidence of "physical, psychic or emotional harm to a child such as [S.H.H.]." (citing Div. of Youth and Family Servs. v. J.T., 354 N.J. Super. 407, 410 (App. Div.), certif. denied, 175 N.J. 432 (2003); Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 435-36 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002)).

With regard to the third prong, the court initially found that "[t]he appropriate menu of services did focus upon the mother . . . due to the unavailable imprisonment of [S.H.]" However, "while [S.H.] was in custody, . . . he was obviously unavailable and legally incapable of utilizing any Divisional reunification services which the Division might provide." The judge concluded that DYFS "legally . . . [was] not, by our case law obligated to further [provide services] while [S.H.] was so incarcerated."

Judge Callahan detailed the services directed at M.H. and the child. S.H. identified his father as a potential resource placement for S.H.H., but the father explained that his employment responsibilities would not allow him to care for S.H.H. The judge detailed the services offered to S.H. when he was released from prison, while noting that S.H. "exaggerated the time frames of his contact." The judge credited DYFS records as to when S.H. contacted DYFS after being released from prison, finding that S.H. contacted DYFS "approximately a month after getting out of jail." He also credited the DYFS worker's testimony that S.H. told her he would no longer be visiting his son because the visitation site posed the risk of his being arrested for a parole violation. The judge detailed several relatives of M.H. and S.H who were considered and rejected as potential placement options for S.H.H.

The judge stated that he interpreted S.H.'s plan to live with his "lady friend, and the mother of his other child, upon release" to be "only a hope" because S.H. had not supplied "any confirmatory evidence that would support such hopes." The judge noted that S.H. has never held a full-time job or completed his G.E.D. requirements, but that he did participate in "some type of institution fatherhood program." However, the judge concluded that S.H.:

[H]as taken no steps other than his brief visitation period to establish a parent-child relationship with his son . . . . He has not, other than that fatherhood program, joined any other type of programs that he would testify to that might be available in the prison, such as job training, aside from any programs that might deal with the earlier-referenced drug difficulties that he found himself in that had him arrested and placed in an institution.

With regard to Dr. Brown's testimony, the judge credited Brown's opinion that S.H. had "awareness of a limited nature of the special physical developmental needs of his son," and

has poor behavioral insight . . . [and] is in the mentally-deficient range of intellectual functioning, which is a polite term for saying that his IQ is under 70. He has a significant history of anti-social behavior[] . . . He is immature with poor impulse control, has poor insight, has feelings of less competence and poor adaptability with few appropriate assertiveness skills. . . . He has accomplished very little . . . in his adult life up to this point in time.

Based on Brown's testimony, Judge Callahan concluded that the second prong was met by clear and convincing evidence because S.H. "is surely not . . . able to offer a safe and stable home when he does get out of [jail]."

In determining that the fourth prong had been met by clear and convincing evidence, the trial judge found that "there never has been in effect a family unit to restore, and we cannot lose sight of the time that is going by from the perspective of S.H.H.'s needs." The judge credited the testimony of the adoption supervisor, who indicated that S.H.H.'s physical development had improved in foster care and that DYFS had a high level of success recruiting adoptive families for special needs children. The judge also credited Brown's opinion that S.H. will "become a repeat offender and be re-incarcerated in the future." Further, the judge credited Brown's observations regarding S.H.'s "adult anti-social behavior . . . diagnosis, coupled with the mild mental retardation and learning disorder," which supported Brown's conclusion that S.H.'s parenting prognosis was poor. Based on this evidence, the judge was satisfied that DYFS had demonstrated the fourth prong with clear and convincing evidence. He concluded that S.H.'s parental rights to S.H.H. should be terminated in the child's best interests.

III

On this appeal, S.H. raises the following points for our consideration:

POINT I: DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE S.H.'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILD'S BEST INTERESTS.

A. The State Failed to Prove the First Prong Because the Child's Health and Safety is Not Endangered by the Parental Relationship with S.H.

B. The State Failed to Prove the Third Prong Because It Failed to Make Reasonable Efforts to Provide S.H. with Appropriate Services.

C. The Trial Court Erred in Stating that Case Law Excused DYFS from Providing Services to Incarcerated Parents.

D. The State Failed to Prove the Fourth Prong Because Termination of Parental Rights Would Not Do More Harm than Good.

E. The State Failed to Prove the Second Prong that S.H. is Unwilling and Unable to Eliminate the Harm Facing the Child.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,' and they should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Indeed, special deference is owed to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Guardianship actions implicate a constitutional right to parental autonomy, recognized under both the Federal and New Jersey Constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102. In striking a balance between these competing considerations, courts seek to act in the "best interests of the child." N.J.S.A. 30:4C-15(c).

S.H. claims that the Division failed to meet its proofs under the four-part guardianship inquiry articulated in Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if 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.

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not discreet and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." Div. of Youth and Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

While Judge Callahan thoroughly discussed and appropriately addressed the statutory factors, we add the following observations. S.H. claims that DYFS did not meet its obligation to provide him with reunification services. We disagree. In In re Adoption of Children by L.A.S., 134 N.J. 127, 138-44 (1993), the Supreme Court held that a parent's incarceration, while "unquestionably relevant" to the termination decision, does not automatically justify termination of parental rights. L.A.S., supra, 134 N.J. at 136-37. Rather, the court must consider a host of relevant factors:

[A] parent's lengthy incarceration is a material factor that bears on whether parental rights should be terminated. Incarceration may be such a factor based on either abandonment or parental unfitness. Further, we conclude that the nature of the underlying crime giving rise to incarceration is relevant in determining whether parental rights should be terminated, because it may bear on parental unfitness. We also determine that the hearing to decide whether parental rights should be terminated must be based on a broad inquiry into all the circumstances bearing on incarceration and criminality, and must include an assessment of their significance in relation to abandonment or parental unfitness.

[Id. at 143.]

Following L.A.S., we have recognized that

"[i]mprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions,'" It also may serve to frustrate nurturing and the development of emotional bonds and as a "substantial obstacle to achieving permanency, security, and stability in the child's life." Additionally, the nature of the crime causing the incarceration bears upon the issue of parental fitness and the potential for rehabilitation. The length of the custodial term is likewise an important consideration.

[Div. Youth and Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006)(citations omitted).]

Unlike the incarcerated parent in S.A., supra, S.H. has been in prison for most of his son's life and therefore has not been in a position to develop a relationship with the child. S.H. also chose to become a fugitive, thereby again abandoning his son. Further, it is clear that even after he is released from his current incarceration, S.H. will not be in a position to act as custodial parent for his son, who has now been in foster care for more than two years. Meanwhile, the child is entitled to a stable and permanent home, which it appears from this record is a realistic prospect once S.H.'s parental rights are terminated.

 
Affirmed.

(continued)

(continued)

13

A-4211-08T4

RECORD IMPOUNDED

December 14, 2009