NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.E.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3135-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

 

Plaintiff-Respondent,

 

v.

 

J.E.W.,

 

Defendant-Appellant.

__________________________________

 

IN THE MATTER OF THE GUARDIANSHIP OF J.W., a minor.

__________________________________

November 24, 2010

 

Submitted October 19, 2010 - Decided

 

Before Judges Graves, Messano and Waugh.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0170-09.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Vonnetta C. Fermin, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor J.W. (Lisa M. Black, Designated Counsel, on the brief).

 

PER CURIAM

Defendant J.E.W. is the biological father of J.W., a three-year-old boy. Defendant appeals from a judgment entered on December 18, 2009, terminating his parental rights and granting guardianship of J.W. to the Division of Youth and Family Services (DYFS or the Division). Based on our examination of the record and the applicable law, we conclude the trial court's decision to terminate parental rights is supported by clear and convincing evidence. Consequently, we affirm.

At the outset, we reiterate the well-settled principle that parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).

"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).

The New Jersey Supreme Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors 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) 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).]

 

"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. Moreover, the four statutory factors "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." Ibid. "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (citing J.C., supra, 129 N.J. at 10), certif. denied, 192 N.J. 68 (2007).

In this case, the trial court terminated defendant's parental rights following a one-day trial on December 15, 2009. On appeal, defendant claims the Division failed to establish each of the four statutory factors set forth in N.J.S.A. 30:4C-15.1(a). We cannot agree.

J.W. was born on June 17, 2007. At the time, T.E., the child's mother, was Hepatitis C positive and receiving methadone treatment.1 Two days later, a hospital worker reported the birth to the Division, alleging neglect because "[T.E.] did not have any prenatal care" and "[b]oth [T.E.] and [J.W.] were positive for methadone." A DYFS investigation substantiated the allegation. The investigator also spoke with defendant, who acknowledged he was J.W.'s father. He informed the investigator that he was "in school at Star Institute studying phlebotomy." Defendant also stated that he was "residing with his aunt [D.W.] as he [did] not work and [did] not have any income." Regarding T.E., defendant stated that "he thought she stopped using drugs and was just attending the methadone clinic."

When defendant was asked whether there were any relative resources for J.W.'s care, he "gave the name[s] of his aunt [D.W.] and brother [S.W.]." However, S.W. advised the Division he had no interest in caring for the child, and on July 3, 2007, the Division notified D.W. that she had been "ruled out as a placement resource" because she had been "substantiated for neglect [in] 1990 for unsafe housing, lack of supervision and lack of food/clothing."

On June 28, 2007, the Family Part entered an order to show cause and placed J.W. "in the immediate custody, care and supervision of the Division" because of T.E.'s drug addiction and defendant's lack of employment and housing. The court also appointed the Public Defender, Law Guardian Program, to represent J.W.

The next day, following a medical assessment, the Division concluded that J.W. met "the medically fragile criteria due to his prematurity, drug exposure and exposure to [Hepatitis C]." As a result, J.W. required specialized foster care.

On July 10, 2007, the Division referred defendant and T.E. to the Tri-City Peoples Corporation (Tri-City) for biweekly supervised visitation with J.W. The Division's stated goal was "[r]eunification [with] [r]elative or natural father." On July 11, 2007, J.W. was discharged from the hospital to L.M., a foster mother who was also caring for another eleven-month-old foster child.

Dr. Mark Singer, Ph.D. (Dr. Singer or Singer), conducted a psychological evaluation of defendant on August 7 and September 25, 2007.2 During the assessment, defendant reported having a previous child, age sixteen, who resided with her biological mother but remained in contact with defendant. Regarding employment, defendant stated that he had "been employed by a tubing company" since August 26, 2007, but was going back to school at Star Institute. Defendant also confirmed that he was still residing with his aunt and stated he had not seen J.W. for three months because he was "working."

Singer noted in his report that defendant's lack of contact with J.W. "raises concerns regarding [defendant's] commitment to his child and may also limit the quality of bond that may evolve over time." Singer described defendant as a defensive, distrusting individual with a "primitive view of discipline." Nonetheless, Singer concluded, "[w]hile the data does not support reunification at this time, it does appear that, with appropriate support, [defendant] may become a viable placement option for his child." Singer recommended that defendant participate in consistent supervised visits with [J.W.]; undergo individual psychotherapy; receive parenting skills training; and "maintain appropriate employment and housing."

On August 15, 2007, DYFS case worker April Gainer (Gainer) went to L.M.'s home to conduct a monthly visit. She found L.M. and J.W. living in a "very clean" three-bedroom apartment with a kitchen "fully stocked with food and formula" for J.W. and another foster child. Gainer stated that the apartment "appeared to be a safe living environment for [J.W.]." Her report also noted that due to defendant's cancellations, J.W. had only had one visit at the DYFS office with him.

J.W. underwent surgery for a hernia on September 27, 2007. He recovered well and was returned to L.M. However, on November 14, 2007, J.W. had "umbilical exploration surgery" as a result of bleeding around the navel. About three weeks later, on December 8, 2007, J.W. was again admitted to the hospital, this time for "bronchilitis."

A case conferencing form from Babyland Family Services, Inc. (Babyland), dated October 24, 2007, included a recommendation that defendant and T.E. receive parenting education, vocational training, and housing assistance in addition to supervised visitation. On November 28, 2007, both T.E. and defendant attended a compliance review hearing at which the court directed defendant to attend counseling and parenting skills training and granted both T.E. and defendant biweekly supervised visitation with J.W. at Babyland. The court also stated that defendant "wishes to plan [for reunification] even if [J.W.] is not his child." Nevertheless, at defendant's request, DYFS arranged a paternity test.3

On December 12, 2007, Gainer met with defendant, T.E., J.W., and Babyland staff at Babyland. The parents were introduced to Terry Colbert, their Babyland counselor, who was to "assist them in enrolling in parenting classes, finding employment[ and] housing and starting counseling."

The next court review took place on March 5, 2008, before the paternity test results were available. According to Gainer, defendant attended the hearing and said that he did not believe he was J.W.'s father and "[did] not wish to be a part of [J.W.'s] life if he [was] not."4

At the next review hearing on April 2, 2008, defendant was adjudicated J.W.'s father by the Family Part based on the test results, which indicated a "probability of paternity [of] 99.99%." At the same hearing, the court entered a permanency order finding that the Division's plan of "reunification with natural father" was "appropriate and acceptable." The order also stated that DYFS had "provided reasonable efforts to finalize" the plan and that the Division was exempted from the requirement to file for termination of parental rights because defendant was "engaging in services to accomplish reunification" with J.W. Once again, the court ordered defendant to attend counseling and parenting skills training and directed the Division to arrange biweekly visits for T.E. and defendant with J.W. at Babyland.

In April 2008, DYFS again referred defendant to Babyland for a "Parent Education Program." According to the referral form, this program included individual and group counseling, parent-child learning sessions, outreach/home visits, workshops, and visitation services. Defendant was to commence afternoon or night classes "ASAP."

The court held another review hearing on June 25, 2008, which defendant was excused from attending "due to [a] new job." In his absence, the court ordered him to "continue to comply with the Division's services . . . [and] search for employment and housing."

As of August 2008, defendant continued to reside with his aunt. However, on August 15 and 29, 2008, defendant received letters from the Georgia King Village Apartments and the Newark Housing Authority informing him that he had been placed on their waiting lists for an apartment.

On September 15, 2008, the Division again referred defendant to Tri-City for supervised visitation with J.W. The referral requested four visits per month on Saturdays or any other day after 5:00 p.m. Ultimately, the schedule provided for weekly visits every Thursday at 6:00 p.m. from October 9 to December 25, 2008.

At a compliance review hearing on September 17, 2008, L.M. "stated her desire to adopt if [J.W. became] legally free." But the court noted defendant had obtained employment and was searching for housing, and it ordered the Division to "proceed concurrently" with permanency planning for reunification with defendant, and termination of parental rights and adoption by the foster mother.

Sometime in October 2008, defendant moved from his aunt's home and began living with his girlfriend. However, defendant did not advise the Division he had moved and Gainer was unaware of the move when she prepared the following report on December 4, 2008:

Since the last hearing [September 17, 2008], [defendant] has yet to find appropriate housing for himself. Caseworker provided him with a letter to be given to various housing agencies, asking for their assistance. He has been consistently attending supervised visits at [Tri-City] every Thursday, but hasn t done anything else that can contribute to him getting [J.W.] back. Currently he still resides with his Aunt and doesn t have a working phone. The only time he makes contact with worker is when he comes to the Division's office to pick up a [bus card] and usually has little time to converse with worker about his situation. Worker is trying to get him to join the Robinson Group's parenting classes, but he has yet to follow up with them.

 

At a permanency hearing on January 7, 2009, the Family Part found that the Division's plan to terminate parental rights was appropriate because defendant was only sporadically engaging in services to accomplish reunification, failed to complete any of the services that had been provided, and was still searching for housing and employment. Accordingly, the court approved the Division's permanent plan for "[t]ermination of parental rights and adoption by [the] current caretaker."

After the permanency hearing, defendant failed to confirm three straight visits on January 8, 15, and 22, 2009, resulting in another termination by Tri-City. At trial, defendant testified that Tri-City would sometimes cancel his visitation appointments if he was late, but he never explained why he failed to call in advance to confirm the appointments.

On January 29, 2009, a new case worker, Andrea Smith (Smith), met with defendant and Terry Colbert at Babyland, and they developed a case plan that required defendant to complete the parenting skills course and to secure housing and stable employment. At that time, defendant told Smith he was attending "school for building maintenance at PC Tech" and was on waiting lists for housing. Smith explained "it [was] great" that defendant was going to school, but when he returned to court, the judge was "going to want to see proof of income [and] how he [was] going to provide for [J.W.]."

Smith also explained that Tri-City had terminated defendant's visitation due to "three missed visits." At defendant's request, Smith indicated she would arrange for visitation at the DYFS office, and it was agreed that the visits would occur every other Friday from 3:15 to 4:15 p.m., with the first visit on February 6, 2009. Smith advised defendant that he had to confirm all visits twenty-four hours in advance, and once again, Smith enrolled defendant in parenting skills classes at Babyland.

Prior to defendant's first visit on February 6, 2009, "someone" called Smith at the Division office to inform her that defendant would not be able to attend because he was out of town. Roughly two weeks later, defendant did successfully attend visitation at the DYFS office, but he requested that future sessions be moved to Mondays. Smith agreed. Nevertheless, defendant cancelled the next visitation scheduled for March 9, 2009.

Aside from a missed call inquiring about transportation, Smith had no further contact with defendant until March 30, 2009, when he stopped at the office to obtain a bus card. On April 2, 2009, Smith contacted Babyland, which confirmed that defendant was participating in parenting skills classes.

In February 2009, defendant married the woman he was residing with, and they moved to a new address in March 2009. Nevertheless, defendant refused to allow the Division to assess their residence, continually claiming that he had to discuss the matter with his wife. Furthermore, although defendant claimed at trial that he provided DYFS with information about his wife, the Division's documentary records indicate that defendant repeatedly refused to supply the information necessary to perform a background check on her.

The Division filed a complaint for guardianship on April 2, 2009, alleging that T.E. and defendant were "unwilling or unable to eliminate the harm facing [J.W.]." The same day, the court entered an order to show cause why the parental rights of T.E. and defendant should not be terminated.

On April 23, 2009, the return date of the order to show cause, L.M. reiterated her desire to adopt J.W. Defendant appeared at the hearing and admitted that because of school and his ongoing search for housing and employment, he "just couldn t keep the visits up to point." The court entered a case management order mandating a psychological and bonding evaluation and the resumption of weekly visitation. The court also ordered the Division to provide defendant with a bus card to assist with transportation to services and visitation.

Following the hearing, defendant and Smith agreed upon a weekly visitation schedule that allowed defendant to spend one hour per week with J.W. at the DYFS office. Defendant attended visits on May 1, 8, and 15, 2009. It is not clear why there was no visitation on May 22, 2009. Unfortunately, J.W. was not available on May 29, 2009, but DYFS offered to give defendant an extra hour at his next visit.

That same day, defendant spoke with Modeyah Ford, a DYFS supervisor, about the possibility of visiting J.W. if he remained with L.M. Ford explained that any visits would have to be at L.M.'s discretion and suggested that if defendant "was thinking about [J.W.] being cared for permanently by the foster mother he should talk with his attorney to request a mediation." Ford also asked defendant if he was willing to provide his wife's information and to allow the Division to assess their home. Defendant declined, stating "he [did] not like where he live[d] and would like to be somewhere else."

On May 28, 2009, Smith notified defendant that thirteen "therapeutic visits" had been scheduled for him and J.W. These visits were to take place weekly at Tri-City between June 5 and August 28, 2009.

Defendant failed to attend the next court hearing on June 1, 2009. Appearing for the Division, Smith testified that defendant had attended weekly visits since the last hearing but had not allowed her to "assess his living arrangements." At this time, defendant's attorney requested mediation.

In June 2009, defendant successfully completed Babyland's "Parent Education Program" by attending ten classes and three counseling sessions. Defendant had taken almost two years to finish the program.

Dr. Singer conducted another psychological evaluation of defendant in June 2009, as well as bonding evaluations with both defendant and L.M. He observed that with L.M., J.W. "was very verbal, both spontaneously and responsively," "actively explored the observation room," and "brought toys over to [L.M.] to engage in play." Moreover, L.M. successfully redirected J.W. when he became "frustrated" and "fussy." When L.M. left the observation room, J.W. "cried uncontrollably," stopping only when she returned.

Although J.W. seemed to resist close contact with defendant at first, Singer observed that he warmed to defendant and their time together included play and a diaper change. Twice during the session, J.W. began screaming and crying. Defendant tried to soothe him, checked his diaper, and even brought him outside for a change of scenery, but the tantrum continued. At one point, when J.W. would not stop screaming, defendant shouted repeatedly, "[J.W.] stop. Nobody is hurting you." Toward the end of the evaluation, after J.W. had calmed down and handed defendant a toy, Singer observed defendant respond:

So now you want me. I don t want to be bothered with you. I guess that s not the right thing to say. I missed 5 months of his life and this is the first time he reacted this way. I was working and couldn't see him.

 

In his analysis of J.W.'s interactions with L.M. and defendant, Singer focused on two issues: defendant's parenting ability and J.W.'s relationships with defendant and L.M. Although Singer saw no evidence of "any significant personality disorder that would preclude [defendant] from parenting," he found that J.W. had "come to view [L.M.] as . . . a consistent parental figure," and that J.W. had "clearly formed the foundation for a secure parent-child bond with [L.M.]." In contrast, Singer concluded that J.W. had "not developed a secure attachment to [defendant]":

The bonding data further suggest that, within a reasonable degree of psychological certainty, [J.W.] has not developed a secure attachment to [defendant]. While the child has achieved a familiarity with his father, the data suggest that this relationship is conflictual and that [defendant] has difficulty being a consistent, nurturing parental figure within the confines of the parent-child dyad. As such, the data suggest that, within a reasonable degree of psychological certainty, should this relationship be severed, while [J.W.] may react to the loss of a familiar figure in his life, it is not anticipated that the child would experience significant and enduring harm.

 

. . . .

 

While the child's age may allow [J.W.] to be transitioned into another home, the bonding data suggest that the quality of the relationship between [defendant] and [J.W.] is not likely to be therapeutic and, as such, is not likely to assist in mitigating the harm [J.W.] would likely experience should his relationship with his psychological parent be severed.

 

Singer concluded that "[t]he data clearly does not support reunification with [defendant] at this time." However, before making a recommendation regarding the termination of defendant's parental rights, Singer stated that defendant's wife should be evaluated by a qualified psychologist to assess her parenting ability. Singer also requested additional DYFS records to get a clearer picture of the interaction between J.W. and defendant and to determine defendant's "level of commitment to working towards reunification with J.W."

Therapeutic visits at Tri-City took place as planned on June 12 and 26, 2009, but J.W. was unavailable on June 5 and 19, 2009. To make up for these two missed visits, Smith arranged for defendant to have a two-hour visit with J.W. at the DYFS office on July 9, 2009. However, after defendant failed to confirm the visit twenty-four hours in advance, it was rescheduled for July 16, 2009. On that date, defendant called to postpone the visit "because he had a project at school he needed to complete."

Defendant was not present at a compliance review hearing on July 20, 2009. Because he missed two consecutive hearings, the court entered default against him, which was subsequently vacated. When defendant met with Smith at the DYFS office on July 31, 2009, to pick up a bus card, he told her he had been "busy with school and working." Smith reminded defendant that bus cards were for parents who were participating in services and asked defendant if he had spoken "with his wife in reference to assessing the home." When defendant responded that he did not have a chance to do so, Smith told defendant he needed to do more to show that he was planning for his child. Nevertheless, defendant failed to attend supervised visits on August 7, 14, and 21, 2009, and was again terminated from Tri-City's supervised visitation program on August 21, 2009.

The parties failed to reach an agreement in mediation, and another hearing was held on August 25, 2009. The Division reported that visitation had been terminated due to poor attendance by defendant but would be reestablished at the DYFS office. In addition, defendant's attorney advised the court: "[M]y client feels very strongly that he's going to do an identified surrender. He just needs some time to think about it."

After defendant was terminated from Tri-City's visitation program, the Division scheduled a visit at the DYFS office at 2:00 p.m. on August 31, 2009. Defendant arrived at the office at 3:10 p.m., and the visit had already been cancelled due to his failure to confirm in advance. Defendant had no further visits with J.W.

At the next court review hearing on September 30, 2009, defendant's attorney indicated that defendant would "proceed to trial, as opposed to doing the surrender." Defendant's attorney also stated that defendant was "in the process of securing" a job and an apartment so that he could be a viable placement for J.W.

On October 1, 2009, defendant met with Smith at the DYFS officeand requested visitation on weekends. Smith informed him that the Division was not open on weekends, but promised to speak with L.M. about arranging private visits. Smith provided L.M. with defendant's phone number later that day. According to Smith, L.M. attempted to schedule a visit but did not follow up after she was unable to reach defendant.

On October 22, 2009, Smith sent a letter to defendant requesting information regarding his wife. In the letter, Smith explained the need for "background checks" and a "home assessment" before a child could be placed. The letter also stated that if defendant and his wife wanted to be considered for reunification, defendant should contact the Division by October 30, 2009. At trial, Smith testified the letter was sent by certified and regular mail, but only the certified letter was returned for an insufficient address. According to Smith, defendant "never responded" to the letter.

The next court review was held on November 16, 2009, with defendant again absent. At that time, J.W.'s law guardian stated that defendant had missed another scheduled evaluation, and the court barred defendant from introducing any expert testimony unless and until he cooperated with the law guardian's evaluation. The court also scheduled the trial for December 15, 2009.

During the trial, the court heard testimony from three witnesses: Smith, Singer, and defendant. Smith detailed the Division's efforts to provide necessary services to defendant and his overall lack of compliance. Smith also testified that the three biggest obstacles to reunification were "the lack of housing and lack of employment and . . . the inconsistency with visiting."

When Singer was asked if he had an opinion regarding defendant's commitment to J.W., and he testified as follows:

[Defendant's] level of commitment, based upon the totality of the data that I have suggested that there are some serious concerns regarding his level of commitment, specifically with respect to the issue of visitation. You know, again, four or five months of not having visits.

 

. . . I had the opportunity to evaluate [defendant] going back to 2007. So, in theory, [defendant] had an opportunity since 2007 to do what he needs to do in order to reunify with [J.W.]. And the data suggested . . . he was unable to do so.

 

Dr. Singer noted in his bonding evaluation and at trial, that J.W. has special needs. According to Singer, J.W. is a "fussy child," and defendant "has a limited frustration tolerance when it comes to dealing with [J.W.'s] behaviors, which clearly are challenging behaviors."

Singer also stated that if J.W.'s bond with his foster parent were broken, "he would have a significant adverse reaction." Moreover, based on defendant's "psychological makeup" and the nature of his relationship with J.W., Singer testified that defendant "would not likely be able to mitigate [the] harm" to J.W.

Defendant testified at trial that his relationship with T.E. lasted approximately one year, but he had no knowledge of her drug use or other children. He also defended his visitation record, blaming inconsistencies on public transit, Tri-City, the Division, and L.M. Defendant testified he had been employed as a driver for D'Artagnan for the last thirty days. Prior to that, he worked for a moving and storage company from June to October 2009. According to defendant, his only other employment was as a warehouse worker for thirty days in late 2007. In the interim, defendant attended classes at Star Institute and PC Tech. When asked what he did to facilitate reunification, defendant said he had a job, found an apartment, and did everything "to the best of [his] ability."

Defendant explained he was reluctant to provide the Division with information concerning his wife because he "didn't feel it was necessary":

Q. . . . But at some point after [your marriage] . . . the case worker asked you specific information about your wife?

 

A. Yes.

 

Q. And you were reluctant to give that information. Is that correct?

 

A. Yes.

 

Q. And part of [the] reason was that . . . your wife was not going to be part of the plan?

 

A. Yes.

 

Q. And that your wife didn't have any intentions of being part of the plan?

 

A. No.

 

. . . .

 

THE COURT: No, meaning she didn't? You're clear on that, right?

 

[DEFENDANT]: Well . . . I was going to include her, but I had . . . started it and was already into it, so . . . I didn't feel it was necessary.

 

According to defendant, he planned to move into a two-bedroom apartment on December 22, 2009. However, he testified his wife would not be residing with him:

Q. [It's] a two-bedroom apartment. Okay. And is it your plan that your wife is going to share that apartment with you?

 

A. Not right now.

 

THE COURT: Well . . . when would she?

 

[DEFENDANT]: She . . . will possibly be there.

 

BY [DEFENSE COUNSEL]:

 

Q. Well, I'm not asking if she's going to be there. I'm saying is she going to live there? Is it your plan that your wife is going to live there?

 

A. Yes.

 

. . . .

 

Q. In terms of -- I'm sorry?

 

A. . . . [S]he will be visiting.

 

. . . .

 

THE COURT: She'll be visiting?

 

[DEFENDANT]: Visiting. Yes.

 

. . . .

 

THE COURT: Visiting you?

 

[DEFENDANT]: Yes. She has . . . her own place. . . . [I]t sounds . . . unorthodox, or it sounds crazy. However, it [is] the best way I can explain it, and it happens every day sometimes, like this.

 

BY [DEFENSE COUNSEL]:

 

Q. Basically, she plans to stay in the apartment that she lives in, and you're going to move into another apartment?

 

A. Exactly.

 

In an oral decision on December 16, 2009, the trial court determined that the Division had met its burden and terminated defendant's parental rights. Judgment was entered on December 18, 2009.

On appeal, defendant presents the following arguments:

POINT I:

 

DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15.1.

 

POINT I(A):

 

DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE HARM COMPELLING ENOUGH TO TERMINATE J.E.W.'S PARENTAL RIGHTS.

 

POINT I(B):

 

DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.E.W. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HIS SON, OR WAS UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIS SON.

 

POINT I(C):

 

DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO CORRECT THE CIRCUMSTANCES WHICH LED TO J.W.'S PLACEMENT OUTSIDE THE HOME AND DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT CONSIDERED ALTERNATIVES TO TERMINATION OF J.E.W.'S PARENTAL RIGHTS.

 

POINT I(D):

 

DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF J.E.W.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

 

Based on our review of the record and the applicable law, we reject these arguments and affirm the judgment terminating defendant's parental rights.

Defendant's sporadic compliance with the supervised visitation services provided by DYFS played a significant role in the court's analysis under the first two prongs of N.J.S.A. 30:4C-15.1(a). While the court noted that defendant was not responsible for some of the cancelled visitation sessions, it ultimately concluded that "[t]here simply have been too many periods when [defendant], by his own admission, failed to follow through." Likewise, the court found it "unfortunate" that defendant took almost two years to complete a parenting course. Although defendant claimed that his initial parenting course at Babyland was terminated when the counselor was fired, the court found that "Babyland did not drop the ball." Rather, "[defendant] had . . . other problems . . . to which he devoted his time and attention.

In addition, the court expressed concern regarding defendant's housing and employment. For the majority of J.W.'s life, defendant relied upon relatives and friends for shelter. While the court described defendant as an "industrious individual" and acknowledged that defendant had applied for his own housing, it found that he had taken a "secretive approach" to his living arrangements. The court also noted that defendant failed to present a practical plan for child care while he was either at work or at school.

Overall, the court concluded that defendant's repeated failures to allow the Division to evaluate his wife and assess their home indicated "a serious absence of realistic [planning]." Finding these facts to be "sufficient, substantial, and controlling," the court concluded that "beyond an expressed desire to care for his son . . . [defendant] has really no concrete plan for [J.W.'s] care."

The first prong of the statutory test requires a court to analyze whether "[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-15.1(a)(1). "The harm shown under the first prong 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. This first prong is related to the second, which concerns the parent's willingness to eliminate the harm facing the child, N.J.S.A. 30:4C-15.1(a)(2), "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." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

As our Supreme Court has recognized, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid. Moreover, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Id. at 383.

In the present matter, defendant frequently expressed an interest in raising J.W., but his participation in visitation and services was erratic. According to Smith, housing, employment, and visitation were the three major problems preventing reunification, and the Division attempted to provide defendant with rehabilitative services to help him overcome these obstacles. Despite the Division's efforts, the court found that defendant failed to consistently participate. For example, the court noted that defendant had not seen J.W. in three months "due to work" when Dr. Singer evaluated him in 2007; and defendant stated he had not seen J.W. for "about four months" when Dr. Singer evaluated him in 2009, because defendant had been "working for a moving company." Moreover, the Division had to repeatedly refer defendant to Tri-City for visitation and to Babyland for services and visitation.

In addition, the court relied on Dr. Singer's determination that defendant "has difficulty being a consistent, nurturing parental figure," and J.W. "has not developed a secure attachment to" him. Thus, the trial court concluded that defendant's failure "to follow through" with visitation and other services established a danger to J.W.'s "safety, health, or development" under N.J.S.A. 30:4C-15.1(a)(1), and the record fully supports that finding.

The second prong of the termination analysis requires the Division to prove that "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). Furthermore, "[s]uch 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." Ibid.

In this case, we conclude from our review of the record that there is sufficient credible evidence to support the trial court's determination that defendant has been unwilling or unable to provide J.W. with a safe and stable home and that further delay will add to the harm. At trial, defendant blamed his poor visitation attendance on the Division, Tri-City, and public transportation. However, it is clear from the documentary evidence that there were several instances of rescheduled visits, and DYFS was willing to modify the visitation schedule to accommodate defendant's reasonable requests. Despite the accommodations made for defendant, he simply could not or would not do what was necessary to maintain regular contact with J.W. Similarly, the record confirms defendant's inconsistent commitment to services. As the trial court found, defendant's own ambivalence resulted in the initial termination of Babyland services.

In addition, the trial court found defendant was "secretive" regarding his living arrangements because he was unwilling to allow the Division to evaluate his wife and their home. Thus, the trial court concluded that defendant's conduct demonstrated "a serious absence of realistic [planning]" and that DYFS established prong two of the statutory test by clear and convincing evidence. We agree.

Under the third prong of N.J.S.A. 30:4C-15.1, the trial court found that the Division made reasonable efforts to provide rehabilitative services and other assistance. The court noted the Division's numerous referrals to Tri-City for visitation and to Babyland for services and visitation; its letter on defendant's behalf requesting housing assistance; and efforts to provide alternative visitation at its office. Regarding employment, the court concluded that DYFS could be little more than "helpful" and its efforts were "sufficient."

The court also found that the Division considered alternatives to termination, including the three relative resources recommended by defendant. One was ruled out due to a history with the Division, another by disability, and the third by choice. In addition, the Division made repeated efforts to assess defendant's home as an alternative to termination, but defendant was unwilling to cooperate. Accordingly, we find there was sufficient credible evidence to support the trial court's determination that DYFS satisfied the third prong of N.J.S.A. 30:4C-15.1(a).

Finally, the court found that termination would not do more harm than good under N.J.S.A. 30:4C-15.1(a)(4). On this point, the court accorded particular weight to the finding by Dr. Singer that defendant "[d]oes not feel a sense of emotional closeness to [J.W.]." The court further determined that this distance, coupled with defendant's intermittent visitation, raised concerns about his commitment and parenting ability. Moreover, the court found that J.W. would not suffer significant or enduring harm from the termination of his relationship with defendant. In contrast, the court concluded that J.W. had "clearly formed the foundation for a secure parent-child bond with [L.M.] and . . . would experience a significant adverse reaction to the loss of his psychological parent."

"The question to be addressed under [the fourth] prong is whether, after considering and balancing the two relationships, 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. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy" the fourth prong. Id. at 363.

In support of his claim that Singer's evaluations do not support a prong four finding, defendant points to two cases. First, defendant cites In re Guardianship of J.C., in which the Court noted that "the uncritical use of bonding theory can increase the risk of institutional bias." J.C., supra, 129 N.J. at 21. However, in this case, the bonding evaluation was not as the J.C. Court feared used to simply determine and select the "better" parent. Ibid. Instead, it established, within a reasonable degree of psychological certainty, the depth of the relationships J.W. shared with defendant and L.M. This analysis is critical to a proper consideration of the fourth prong.

Defendant's reliance on New Jersey Division of Youth & Family Services v. I.S., 202 N.J. 145 (2010), is similarly misplaced. In that case, DYFS produced an expert who testified that the child was more bonded with his foster parents than he was with his biological father. Id. at 181-82. Nevertheless, the Court determined that DYFS had not satisfied its statutory obligation because it stifled the father's relationship with his child by failing to provide adequate visitation. Id. at 182. Therefore, in those "distinct circumstances," the Court held that "DYFS's inadequate visitation plans . . . standing alone, should have caused the rejection of any application seeking the termination of [the father's] parental rights." Ibid. In the present matter, however, defendant failed to avail himself of the many visitation opportunities provided by the Division.

Dr. Singer's evaluation confirms what common sense suggests: defendant's failure to cultivate a relationship with J.W. has resulted in an emotional gap between them. As Singer concluded, L.M. has "clearly formed the foundation of a secure parent-child relationship" with J.W., and the termination thereof would engender "a significant adverse reaction." Singer also determined that J.W. had "not developed a secure attachment" to defendant, and their relationship could be terminated without significant and enduring harm to the child.

On the strength of Singer's analysis, the court found that the Division had proven the fourth prong under N.J.S.A. 30:4C-15.1(a). Because the record provides no evidence to the contrary, we agree.

In view of the foregoing, we conclude that the trial court's findings and conclusions are supported by clear and convincing evidence. We therefore affirm the judgment terminating defendant's parental rights to J.W.

Affirmed.

1 T.E., who is not a party to this appeal, is the mother of eight other children, none of whom are in her custody. After J.W.'s birth, T.E. told a DYFS worker that she had used heroin "in the early stages of her pregnancy." In July 2007, DYFS described T.E. as an "active substance abuser."

2 The evaluation was initially scheduled for only August 7, 2007, but a second day became necessary because defendant arrived forty minutes late.

3 Defendant also provided the name and telephone number of another potential caregiver, Sh.W., at the November 28, 2007 hearing. When contacted, Sh.W. "indicated that she was on disability and was unable to care for the child."

4

Because the record includes neither a transcript nor an order from this hearing, we have relied upon Gainer's report.