NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5696-07T45696-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.B., III,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.B.,

a Minor.

________________________________________________________________

 

Submitted April 1, 2009 - Decided

Before Judges Fisher, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, Docket No. FG-02-108-07.

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

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor, R.B. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, R.B., III, appeals from an April 16, 2008 order that terminated his parental rights to his son, R.B., born August 8, 2004. Defendant contends that the proofs offered at trial by the Division of Youth and Family Services (DYFS) failed to satisfy the applicable statutory standard for termination of parental rights, and accordingly the order in question must be reversed and the termination vacated. In the alternative, defendant argues that he was denied the effective assistance of counsel and is entitled to a remand pursuant to New Jersey Division of Youth and Family Services v. B.R., 192 N.J. 301 (2007). We affirm.

I.

DYFS involvement with defendant began on July 7, 2005, when police responded to a neighbor's call to 9-1-1 about a loud argument between C.B. and defendant. When police responded to the home, C.B. reported that she and defendant had been arguing because there was not enough money to buy food. C.B. alleged that during the argument, defendant grabbed eleven-month old R.B. by the arm and threw him to the floor, causing a cut under his right eye. C.B. also reported that defendant had thrown a heavy toolbox at her during the argument, and when she stepped aside to avoid the attack, the toolbox hit D.C., C.B.'s daughter from a prior relationship. D.C. sustained a contusion to her right eye and a bloody nose. Both children received medical treatment at a local hospital. On July 15, 2005, C.B. sought, and obtained, a domestic violence temporary restraining order (TRO) against defendant, barring him from any contact with her, D.C. and R.B.

During a search of defendant's abandoned car, police found three rifles, two knives, a crossbow, a pistol and ammunition. Ultimately, defendant was admitted into the Pretrial Intervention Program and placed on probation for three years as a result of the July 7, 2005 incident.

On February 1, 2006, DYFS learned that R.B. was in defendant's custody despite the July 15, 2005 TRO that barred defendant from having any contact with R.B., much less actual physical custody. Defendant's violation of the TRO, and the imminent threat to R.B.'s physical safety and security, led DYFS to initiate an emergency removal of R.B. on February 1, 2006. Two days later, DYFS filed a verified protective services complaint in which it sought custody of R.B., D.C. and a third child born to C.B. That same day, the court ordered all three children to be placed in the legal and physical custody of DYFS, and directed that any contact between defendant and R.B. be supervised. At the same time, the judge ordered defendant to submit to a psychological evaluation with Dr. Manuel Iser.

After a clinical interview and psychological testing of defendant on April 6, 2006, Iser diagnosed defendant as suffering from a personality disorder with narcissistic traits and intermittent explosive disorder. Iser opined that defendant's refusal to take responsibility for his assaultive conduct toward his son was "[o]f major clinical concern."

Iser also opined that "under certain conditions," which included "brooding, using drugs, and becoming angry regarding his wife's adulter[ou]s affair," defendant could again become violent and assaultive, thereby endangering R.B., because defendant "makes no distinction between harming children and adults." Iser also opined that defendant "lacks impulse control." He recommended that defendant engage in individual psychotherapy, submit to an immediate psychiatric evaluation and random drug screens, and attend substance abuse treatment if defendant tested positive during any of his urine drug screens.

At a June 15, 2006 compliance review hearing, after reviewing Iser's report, the judge ordered defendant to attend parenting skills training, and complete a psychiatric evaluation, substance abuse treatment and individual therapy. That same day, defendant enrolled in the Challenge Domestic Violence Prevention Program, and although he initially did not complete all of the sessions, he eventually finished the program.

On June 19, 2006, defendant was evaluated by psychiatrist Raluca Radulescu. Dr. Radulescu observed that although defendant's mood "was mildly anxious and irritable," and his "affect was constricted," defendant's "insight, judgment and impulse control were intact." Radulescu opined that defendant "does not suffer from any type of mental illness that per se would prevent him [sic] with regard to his ability to take care of [R.B.]." Radulescu did, however, recommend that defendant continue to participate in anger management and domestic violence prevention classes.

At the December 14, 2006 compliance review hearing, DYFS reported that defendant did not have a permanent residence and was continuing to move from place to place. The judge ordered defendant to provide his DYFS caseworker with a copy of his apartment lease no later than December 28, 2006. Defendant failed to do so by December 28, 2006 or at any time during the later guardianship trial.

On February 27, 2007, DYFS filed a guardianship complaint and dismissed its protective services complaint that same day. In anticipation of trial, DYFS obtained an order requiring defendant to submit to a psychological evaluation with Dr. Robert Kanen. During his interview with Kanen, defendant explained that he had been living with C.B. for the past six months. In the next breath, however, he reported that C.B. "has something not right with her." According to defendant, "She changes. Sometimes she bugs out but never hits the kids." Defendant also asserted that C.B.'s moods change quickly and she was so depressed that he had been forced to bring her to a local hospital on two occasions.

Kanen concluded that although defendant was not mentally ill and was "capable of adequately functioning in daily life[,] . . . [defendant] shows evidence of longstanding personality problems." Kanen opined that defendant "is prone to poor impulse control, poor judgment and acting-out behavior during domestic disputes with C.B." Kanen also observed that defendant "has a history of not honoring his parental obligations over a sustained period of time," noting that defendant's three oldest children live with their mother, U.G., from whom defendant is divorced, and defendant has not maintained a relationship with those children. Kanen also expressed "serious concerns about [defendant's] capacity to protect the children from C.B.'s emotional problems and substance abuse" because "[d]espite his recognition that [C.B.] is emotionally unstable and depressed, [defendant] believes that [C.B.] can take care of the children." Ultimately, Kanen recommended that R.B. should not be returned to defendant:

[Defendant] has a personality disorder that contributes to parenting deficits. He is not capable of protecting his children from C.B. at this time. [Defendant] cannot provide his children with a permanent, safe and secure home. He has attempted to remedy some of his parental deficits by completing anger management and domestic violence classes.

. . . .

[Defendant] is unlikely to be able to adequately parent [R.B.] by himself. It is [my] opinion, based on a reasonable degree of psychological certainty, that returning [R.B.] to [defendant's] care would expose [R.B.] to an unnecessary risk of harm.

Kanen also performed bonding evaluations of R.B. with defendant and with R.B.'s foster parents. Kanen noted that R.B. "strongly desired interaction with his father," but the attachment was "insecure due to the length of time [R.B.] had been in an out-of-home placement and the unavailability of [defendant] to reliably and consistently meet [R.B.'s] needs."

As a result of his bonding evaluation with the foster parents on August 28, 2007, Kanen opined that R.B. "was bonded and attached to the foster parents" and "perceive[s] the foster parents as [his] psychological parents." Kanen reported that the foster parents provide R.B. "with enrichment and stimulation[,] safety, security and shelter." Kanen opined that although R.B. would experience grief if his relationship with defendant were to be severed, the foster parents were more than capable of providing appropriate emotional support to mitigate R.B.'s sense of loss. Kanen opined that "the long term development and care of [R.B.] is best served with [his] current foster family" and that R.B. would be "at risk for depression and behavioral problems if removed" from their care.

As the trial date neared, DYFS caseworker Jocelyn Roman reminded defendant that she had repeatedly asked him for information regarding his current residence because if he planned to regain custody of R.B., she would be required to evaluate the suitability of defendant's living arrangements. In reply, defendant asserted he had been living with U.G. for the past month and intended to have R.B. live with him and U.G. if he regained custody. When Roman contacted U.G. to confirm defendant's statements, U.G. responded that defendant had stayed at her house for two days, not the one month that defendant claimed, adding that defendant had already left. U.G. also reported that although defendant claimed to own a construction company, in reality "he has nothing." She told Roman she had never received any child support from him for his three children.

Kanen's trial testimony was similar to his written report, which we have already described. The written report was admitted in evidence. At trial, Kanen emphasized that defendant's history of instability, his virtually non-existent relationship with the three children born to him and U.G., his inability to state where and when he worked, and his turbulent relationship with C.B., all threatened the security and well-being of R.B.

Kanen elaborated on the consequences of defendant's inability to maintain a stable residence, opining that continuous movement from place to place would psychologically harm R.B. and interfere with his development. Kanen explained that if a child is "bounced around" and has "frequent moves, frequent changes," it "disrupts [his] schooling" and causes "adjustment reactions to the changes. [Such moves] put[] too many demands on [the child when forced] to adapt to changing situations. . . . It's a life of disorganization and instability." Kanen also testified that if R.B. were to be removed from his foster parents, he would experience considerable emotional setbacks and would be "at risk for depression and behavioral problems."

In a written opinion dated April 16, 2008, the judge found that defendant's visits with R.B. "went well," and defendant's substance abuse evaluations and urine drug screens revealed no evidence of drug use. Nonetheless, the judge concluded that defendant's failure to establish a permanent residence and obtain employment, combined with defendant's lack of impulse control, had substantially impaired, and would in the future continue to impair, defendant's ability to provide a safe, secure and stable environment for R.B. Ultimately, the judge concluded DYFS had presented unrefuted evidence that defendant abused and neglected R.B., was unable or unwilling to overcome the causes of that abuse or neglect, that DYFS made reasonable efforts to find relatives to care for R.B., and that termination of defendant's parental rights would not cause more harm than good.

On appeal, defendant maintains that: 1) the evidence was insufficient to satisfy the heavy burden of proof cast upon DYFS by N.J.S.A. 30:4C-15.1a; 2) "there is no evidence anywhere in the record that R.B. sustained an emotional injury as a result of the alleged domestic violence incident [on July 7, 2005], and there are no medical reports contained in the record that indicate he suffered a physical injury"; 3) he "completed his quota of services to help him overcome his alleged deficiencies," and all psychological evaluations and substance abuse evaluations were negative; and 4) trial counsel provided ineffective assistance.

II.

It is well-established that parents have a constitutionally protected right to the care, custody and control of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972). In addition, this "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982).

But a parent's constitutional right to maintain the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Indeed, it is well-settled that the State has a parens patriae duty and obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, if the State can demonstrate by clear and convincing evidence, A.W., supra, 103 N.J. at 612, that a child's physical or mental health would be jeopardized by continuance of the parent-child relationship, it may petition the court for dissolution of parental rights. Id. at 600.

Pursuant to N.J.S.A. 30:4C-15.1a, DYFS can obtain a termination of parental rights on the grounds that the best interests of the children require this course if each of the following elements is proven by clear and convincing evidence:

(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) [DYFS] 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.

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). "The four criteria enumerated in the best interests standard 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Appellate review of a trial court's decision to terminate parental rights is limited . . . ." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The findings of the trial judge "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Therefore, we should not disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

Having thoroughly reviewed the testimonial and documentary record, we are satisfied that DYFS established by clear and convincing evidence that defendant has been unwilling or unable to ameliorate the harm he has caused R.B., and that termination of his parental rights to his son will not do more harm than good. We are also satisfied by clear and convincing evidence that DYFS made more than reasonable efforts to help defendant address his anger management problem, lack of impulse control, and his lack of a permanent and stable residence. The record also demonstrates that the court considered alternatives to termination of defendant's parental rights.

In particular, the record amply supports a finding that defendant physically abused R.B., and that defendant's personality disorder and impulse control deficits pose a threat of repeated assaults on R.B. as well as a substantial risk to R.B.'s physical and psychological development. The unrefuted opinions of Kanen and Iser demonstrate that defendant's propensity to violence is a significant component of his personality, which has not been eradicated by the passage of time or by anger management programs. Thus, the record amply satisfies DYFS's burden of establishing by clear and convincing evidence that defendant has already physically harmed his son and is unable to eradicate the risk of repeated incidents of such behavior. Such evidence, when combined with defendant's inability to provide stable living arrangements for his son, amply satisfies DYFS's burden of proving that any further delay in permanent placement will add to the harm to R.B. We agree with the judge's conclusion that the first two prongs are therefore satisfied.

As to the third prong, the record demonstrates that DYFS provided extensive services to defendant, including domestic violence counseling and psychological evaluations. Moreover, the record establishes that DYFS caseworkers repeatedly advised defendant of his need to provide, as DYFS argues, "the assurance as well as the reality of a stable home for [R.B.]." Defendant was unable to do so despite the passage of more than two years. Defendant asserts that DYFS failed in its obligation to provide him with job training and with assistance in finding permanent housing. Yet the record establishes that defendant continually informed DYFS caseworkers that he was self-employed and financially secure, and that he had secured permanent housing. A parent cannot thwart DYFS's attempts to provide services and then claim that the agency did not help to reunite the family. D.M.H., supra, 161 N.J. at 393.

Finally, although defendant never provided DYFS with any relatives who could serve as an alternative to termination of his parental rights, DYFS did investigate numerous relatives of C.B., all of whom were found to be unsuitable, with several having themselves been the target of numerous DYFS abuse and neglect investigations. We thus agree with the judge's finding that the third prong was satisfied.

As to the fourth prong, which requires DYFS to establish that termination will not do more harm than good, Kanen's opinion amply demonstrates that the secure and affectionate attachment between R.B. and his foster parents would override any emotional harm to R.B. that would be caused by termination of defendant's parental rights, thereby establishing that termination would not do more harm than good.

Thus, the judge's findings of fact on all four prongs of N.J.S.A. 30:4C-15.1a are well-supported by the record. The judge also properly applied the facts to the governing law. Accordingly, we conclude that defendant has provided no meritorious basis upon which to disturb the judge's conclusion that DYFS satisfied the heavy burden cast upon it by N.J.S.A. 30:4C-15.1a for termination of parental rights.

III.

Last, we turn to defendant's claim that he was denied the effective assistance of counsel. Defendant maintains that trial counsel was ineffective because she: 1) did not answer defendant's questions and "could not be bothered to explain to [him] what was happening with [his] case"; 2) failed to obtain hospital records that would have shown that "D.C. only had a bloody nose and that R.B. was not seen or treated by medical professionals"; 3) failed to advise him that his housing and employment situations were unsatisfactory to DYFS, and failed to instruct him to produce a lease and provide proof of employment; and 4) failed to advise him that his relationship with C.B. would jeopardize his ability to regain custody of R.B.

In B.R., supra, the Court held that a parent facing a termination of parental rights is entitled to the effective assistance of counsel. 192 N.J. at 306-07. In order to establish a prima facie case of ineffective assistance, a defendant must demonstrate that trial counsel's performance was deficient, and that there exists "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). Our review of ineffective assistance of counsel claims is "'highly deferential.'" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695). Indeed, we presume that counsel's performance fell within acceptable standards governing attorneys in like circumstances; the defendant bears the burden of proving otherwise. Id. at 307-08.

Moreover, as the Court held in B.R., unsupported contentions of counsel's alleged deficiencies are insufficient. Id. at 311. A defendant must submit "an evidentiary proffer" establishing the precise content of the evidence that trial counsel failed to produce. Ibid. As the Court observed, "if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance." Ibid.

Thus, to support his ineffective assistance of counsel claim, defendant was required to submit actual copies of the hospital records as well as a detailed certification setting forth the testimony he himself would have provided had he been called to the stand. He did not do so. Those omissions are fatal to his ineffective assistance of counsel claim. Ibid. Consequently, in light of defendant's failure to supply the proofs the Court specified in B.R., we reject defendant's ineffective assistance of counsel claim as meritless.

 
Affirmed.

The child's mother, C.B., signed an identified surrender, and is therefore not a party to this appeal.

The TRO was issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:24-17 to -35.

That child, D.P., has a different father and is not a subject of this appeal.

(continued)

(continued)

18

A-5696-07T4

RECORD IMPOUNDED

April 20, 2009