OF YOUTH AND FAMILY SERVICES v. R.G. and J.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1310-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.G. and J.G.,

Defendants-Respondents.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.G.,

Minor-Appellant,

and

K.G.,

Minor-Respondent.

_________________________________

December 21, 2011

 

Argued October 13, 2011 - Decided

 

Before Judges Fuentes, Harris and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-70-10.

 

Caryn M. Stalter, Assistant Deputy Public Defender, argued the cause for minor appellant T.G. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Stalter, on the brief).

JaneS. Blank,Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Blank, on the brief).

 

Douglas M. Greene, Designated Counsel, argued the cause for respondent R.G. (Joseph E. Krakora, Public Defender, attorney; Mr. Greene, on the brief).

 

Thomas G. Hand, Designated Counsel, argued the cause for respondent J.G. (Joseph E. Krakora, Public Defender, attorney; Mr. Hand, on the brief).

 

Katherine J. Bierwas, Designated Counsel, argued the cause for minor respondent K.G. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Bierwas, on the brief).

PER CURIAM

J.G. is the biological father of T.G. (fictitiously, Tara). Tara was born on February 23, 2004. J.G. was incarcerated when Tara was six months old. At the time of trial, Tara was six years old and J.G remained incarcerated. At present, Tara and her half-brother K.G. (fictitiously, Kyle), who is six years her elder, reside with their maternal grandmother, G.B.

The Division of Youth and Family Services (Division) brought an action to terminate the parental rights of both J.G. and the children's mother, R.G. Shortly before trial, R.G. voluntarily surrendered her parental rights in favor of G.B. in an identified surrender. The trial judge denied termination of J.G.'s parental rights to Tara. The Law Guardian appealed, arguing that the Division proved all four prongs necessary to terminate J.G.'s parental rights as a matter of law. While this appeal was pending, Kyle was adopted by G.B.1 The Division, R.G. and Kyle support the Law Guardian's position. We agree and reverse, terminating J.G.'s parental rights.

The facts in this matter are largely uncontested. Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, our review of a trial court's findings of fact is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We ordinarily defer to the trial court's factual findings "because it has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citations omitted). Indeed, a trial court's factual findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

In contrast, the trial court's interpretation of the law and the legal consequences that flow from established facts "'are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The trial judge made the following findings of fact, which we accept without reservation. J.G. began his sentence in 2004, approximately six months after Tara's birth.2

The Division first became aware of the family in July 2008, when an anonymous caller reported that R.G. was drunk every day and her home was unsuitable for children. Upon investigation, the Division found R.G. to be under the influence and confirmed the home was unsanitary and in disrepair. The Division removed the children from the home because "they were in imminent danger due to inadequate food and environmental neglect." Tara and Kyle were placed with G.B., with whom they currently reside.

R.G. was directed to obtain substance abuse treatment, therapy, psychiatric monitoring and domestic violence counseling. Although R.G. initially complied, she later relapsed. The incarcerated J.G. was directed only to attend a psychological evaluation and to provide proof of the prison programs he was attending.

The Division's psychologist, Robert Miller, recommended that J.G. have contact with his children by phone and letters and indicated that "J.G. will require significant services for reintegration after his release from incarceration. These include vocational rehabilitation, psychological services and parenting skills training." In October 2009, the trial judge approved a permanent plan of termination of parental rights followed by adoption by G.B. with a concurrent plan of kinship legal guardianship.

The Division filed a complaint for termination of parental rights two months later. As stated previously, R.G. voluntarily terminated her parental rights in favor of G.B. in an identified surrender. J.G. was released from Mid-State Correctional Facility on September 8, 2010, which was after the trial, but before the trial judge's written decision. The trial judge denied the Division's application to terminate J.G.'s parental rights. He ordered that J.G. be permitted to engage in therapy and participate in a bonding evaluation before he would entertain another application to terminate J.G.'s parental rights. J.G. does not object to the continuation of Tara's placement with G.B. He wishes to retain his parental rights so that he can strengthen his relationship with Tara and be guaranteed regular contact with her.

On appeal the Law Guardian raises the following issues:

POINT I. THE TRIAL COURT ERRED IN USING TOO NARROW OF A STANDARD FOR THE FIRST PRONG OF THE BEST INTEREST[S] TEST.

 

POINT II. THE TRIAL COURT ERRED IN FINDING THAT PRONG TWO OF THE BEST INTEREST[S] STANDARD HAD NOT BEEN PROVEN BECAUSE IT ONLY CONSIDERED WHETHER THE DEFENDANT WAS WILLING TO ELIMINATE THE HARM FACING THE CHILD AND FAILED TO CONSIDER WHETHER THE DEFENDANT WAS ABLE TO ELIMINATE THE HARM OR WAS ABLE OR WILLING TO PROVIDE A SAFE AND STABLE HOME FOR T.G.

 

POINT III. THE TRIAL COURT ERRED IN FINDING THAT PRONG THREE OF THE BEST INTEREST[S] TEST HAD NOT BEEN PROVEN BECAUSE THE DIVISION CONCENTRATED ITS EFFORTS OF REUNIFICATION ON THE MOTHER.

 

POINT IV. THE TRIAL COURT ERRED IN FINDING THAT PRONG FOUR OF THE BEST INTEREST[S] TEST HAD NOT BEEN MET.

"A parent s right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parental rights are not absolute, however, because of the State's parens patriae responsibility to protect minor children from serious physical or emotional harm. J.N.H., supra, 172 N.J. at 471. When a child s physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O Hern, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). In some cases, severance of the parent-child relationship may be required to protect the child's best interests. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

In a termination case, "the Court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The Division must present sufficient evidence to demonstrate that the child s best interests will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603 (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969)).

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts conduct a four-part test to assess whether or not termination of parental rights serves the child's best interests. N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if the Division proves by clear and convincing evidence that:

(1) The child s safety, health or development has been or will continue to be endangered by the parental relationship;

 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child s placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

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

 

These four statutory criteria are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child s best interests." K.H.O., supra, 161 N.J. at 348.

The trial judge determined that the Division failed to satisfy its burden as to all four prongs. We disagree and will discuss each prong individually.

I

The first prong requires the Division to prove that "the 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 trial judge viewed the only count in the guardianship complaint against J.G. as an allegation of abandonment. That final count states in full:

[J.G.] is the father of [Tara]. [J.G.] has been incarcerated since [Tara] was placed in the Division's custody. [J.G.] has failed substantially to provide, maintain and ensure the safety and well[-]being of his child. [J.G.] has failed to make a permanent plan for the child[,] has abandoned [Tara] to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the minor(s). To return [Tara] to the care of [J.G.] would expose the child to an unacceptable level of harm or risk of harm.

 

The trial judge first looked to the dictionary definitions of abandonment.3 He then turned to its statutory definition under N.J.S.A. 30:4C-15.1(b), which requires the Division to move to terminate parental rights if, in pertinent part, the following criteria are met:

(1) a court finds that for a period of six or more months:
 
(a) the parent, although able to have contact, has had no contact with the child, the child's resource family parent or the division; and
 
(b) the parent's whereabouts are unknown, notwithstanding the division's reasonable efforts to locate the parent; or
 
(2) where the identities of the parents are unknown and the division has exhausted all reasonable methods of attempting identification, the division may immediately file for termination of parental rights upon the completion of the law enforcement investigation;

. . . .
 

Notably, however, a statutory cause of action for abandonment was not specifically pled by the Division and the dictionary definition of abandonment bears no relevance to the allegation of harm. Shortly after the trial judge's opinion, we upheld the termination of parental rights of a parent who was incarcerated for a substantial portion of his child's life and, for that reason, had no relationship with the child. N.J. Div. of Youth & Family Servs. v. T.S. and K.G., 417 N.J. Super. 228 (App. Div. 2010).

Imprisonment necessarily limits a person's ability to perform their parental obligations. Once imprisoned, a parent has difficulty "performing the 'composite of tasks' associated with parenthood and cannot continue to undertake or to share the daily responsibilities of raising a child[.]" In re Adoption of Children by L.A.S., 134 N.J. 127, 138-39 (1993) (citing N.J.S.A. 9:6-1). Furthermore, a parent's imprisonment substantially hampers "[t]he ability to provide significant nurturing and to maintain an emotional relationship with the child." Id. at 139.

The trial court in T.S. equated the father's incarceration to the physical and financial abandonment of his daughter. T.S., supra, 417 N.J. Super. at 242-43. We affirmed after observing that the father "demonstrated no past parenting of or relationship with the child" and "[a]lthough [the child] knew her father's name, he otherwise was a stranger." Id. at 243. Further, we found that "this lack of a relationship between father and daughter could not be ameliorated by visitation or services because [the father] remained incarcerated throughout the litigation." Ibid.

Here, the trial judge determined that there was

an insufficient showing that the child was endangered by the incarceration of her father. He did nothing to endanger the child during her first six months of life. When he went into custody, she was safely in the custody of her mother. When the children were removed he did everything he could to continue communicating with the family.

However, the circumstances here appear no different from those in T.S., in that J.G.'s incarceration for virtually all of Tara's life prevented her from forming any attachment to him. See id. at 242-43. Another important parallel with T.S. is that J.G. does not seek to assume care of the child upon his release, but instead supports her continued placement with G.B. See id. at 243.

We find as a matter of law under these facts that J.G.'s incarceration, which lasted from when Tara was six months old until after her sixth birthday and prevented the formation of a parental bond, constitutes a harm to Tara. J.G. was absent when Tara needed a reliable parental figure to provide stability, safety and care to combat the persistent neglect perpetrated by her mother. Thus, the Division satisfied its burden under prong one.

II

Prong two may be demonstrated by proof that the parent "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). J.G. does not propose to become Tara's primary or secondary caretaker. As the trial judge found, "He just wants to see his kids."4 He seeks visitation only and is not opposed to kinship legal guardianship (KLG), which requires proofs similar to those for termination. N.J.S.A. 3B:12A-6d. J.G. understands that Tara has formed a strong bond with G.B. and would be harmed by a disruption in that placement. KLG is not an alternative, however, as G.B. is willing to adopt. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004) (stating that "a kinship legal guardian may only be appointed when adoption of the child is neither feasible nor likely.") (internal quotations omitted); N.J. Div. of Youth & Family Servs. v. T.I., ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 11) (explaining that "it is the inability or unwillingness of a caregiver to adopt that renders adoption 'neither feasible nor likely.'") (citations omitted); see N.J.S.A. 3B:12A-6d(3)(b). Therefore, J.G.'s desire to maintain contact with Tara cannot legally be accomplished through KLG when adoption is feasible.

The trial judge decided that because J.G. did everything he was told to do while incarcerated and "never has been shown to be unwilling to eliminate any harm resulting from his incarceration," the Division failed to prove the second prong. However, "harm" under this prong includes the "serious and enduring emotional or psychological harm" caused to Tara by her separation from G.B. N.J.S.A. 30:4C-15.1(a)(2). The fact that J.G. does not seek to separate Tara from her grandmother at this time does not dissipate this concern.

Children are entitled to a legally permanent, safe and secure home. We acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). As public policy increasingly focuses on a child's need for permanency, 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." Id. at 111 (citations omitted). That is because "[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." Ibid. The rights of a parent who seeks only visitation, as opposed to reunification, cannot interfere with the most permanent placement5 available to his child.

III

When considering prong three, whether the Division "has made reasonable efforts to provide services," the trial judge determined that the Division "offered every possible opportunity to [the mother] in aid of reunification and rehabilitation." In contrast, he found the Division did not provide sufficient services to J.G. We have previously found that the Division is impeded by the difficulty and likely futility of providing services to a parent in custody. T.S., supra, 417 N.J. Super. at 242; N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007); N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006).

J.G. was evaluated twice by Dr. Miller, who found that extensive rehabilitation would be required upon his release from prison before J.G. could be reunited with Tara. The trial judge faulted the Division for not providing a phone card to J.G. and criticized G.B.'s refusal to accept some collect phone calls and her failure to pass all of J.G.'s letters to Tara. We agree that it would have been preferable for the Division and the grandmother to have facilitated contact between Tara and J.G. in every instance. However, as a matter of law, the many services offered to the mother fulfilled the Division's obligation, In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999), especially in light of the fact that J.G. does not seek true reunification as a parent, with the associated responsibilities and obligation to care for his daughter.

IV

As to prong four, the trial judge determined that the Division did not demonstrate that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Some harm inevitably occurs when a child loses a biological parent, but the test must also compare the child's bond with the caretaker to its bond with the biological parent. K.H.O., supra, 161 N.J. at 355. The trial judge noted that "the children and their grandmother have created a strong and permanent bond." On the other hand, Tara's relationship with her biological father is tenuous at best. She saw him only once during the six years that he was incarcerated. The only way to ensure that Tara remains with G.B. permanently is through adoption.

We understand the trial judge's concern that Tara be able to visit with her biological father. We also understand the related concern that G.B. may not honor her promise to allow such visitation.6 However, as the Court has stated in similar circumstances,

We "take the foster parents at their word and expect that, as they have promised, they will provide [the son] such opportunities to visit with [the father] and his natural sibling[] as are necessary to his continued welfare and happiness." In re Guardianship of J.N.H., 182 N.J. 29, 31 (2004). Integral to our analysis under the fourth prong, therefore, is the foster parents' willingness to permit continued visitation by the father and the daughter.

 

[N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 287-88 (2007).]

 

G.B. has shown the ability to act in Tara's best interests and is willing to provide a permanent home for her with her older half-brother Kyle. The Court has opined that "the value of nurturing and sustaining sibling relationships" cannot be underestimated. N.J. Div. of Youth & Family Services v. S.S., 187 N.J. 556, 561 (2006) (noting that the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, and the Division's internal Field Operations Casework Policy and Procedures Manual "encourage both placement of siblings in the same home and sibling visitation for those placed in separate homes."). The preservation of this household should neither be delayed nor interrupted by what is essentially a request for guaranteed visitation.

Given that the Division proved all four prongs by clear and convincing evidence, we are constrained to terminate J.G.'s parental rights as a matter of law.

Reversed.

 

____________________________________

HARRIS, J.A.D., dissenting.

This challenging appeal involves the parental rights of a formerly incarcerated father. The Family Part viewed the Division's evidence as insufficient to warrant termination of his parental rights. Although I find some of my colleagues' arguments excellent, I part from their analysis and remain steadfast that the trial court did not err in refusing to terminate J.G.'s parental rights.

Although he presents as a serial offender, with multiple criminal convictions, I cannot agree that J.G. should now be subject to the panel majority's impromptu added punishment of forfeiting his parental rights. See generally, Steven Fleischer, Note, Termination of Parental Rights: An Additional Sentence for Incarcerated Parents, 29 Seton Hall L. Rev. 312 (1998). Because "New Jersey's traditions embody a strong policy commitment to retributive punishment[,] . . . exemplified by the requirements of uniformity and consistency reflected in the Code of Criminal Justice and our many decisions explaining our system as one based on 'just desserts,'" State v. Muhammad, 145 N.J. 23, 81 (1996) (Handler, J. dissenting), I construe the result reached by the panel majority as unduly harsh and beyond a reasonable interpretation of the law as applied to the facts of this case. Perhaps the day will come when the parental rights of J.G. should be terminated, but it is not this day.

Regrettably, this is one case in "the great middle-range of cases involving beleaguered parents with uneven track records. These hard cases raise complicated questions concerning legal and civil rights." New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 602 (1986). As such, it is one in which we should follow the lead of the Family Part, and not choose our own path.7

The trial court had to decide whether the Division had proven each of the four factors of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. In that regard, the trial court found that the Division batted zero for four, yet the panel majority calculates the agency's batting average at a lofty 1.000. Even if it went three-for-four, or hit a stand-up triple instead of a home run, we still would not allow the government to sever the parent/child relationship between J.G. and Tara because our law requires that all four factors be conclusively satisfied. Because that was not the case, I dissent.

While there is no question that the incremental positions of the able judges of the panel majority appear persuasive, they arrive at their conclusion in the aggregate by engaging in a re-weighing of the evidence, a mission better suited for the trial court. Had the panel been so tasked, its views would indubitably hold sway. However, that is not our role. This is the fault line between our positions.

The trial court's application of the relevant law to the facts it found were not so off-course as to call forth the need for our appellate intervention. Said another way, in this concededly close case, all doubts should be resolved in favor of validating the decision of the Family Part that provisionally preserved J.G.'s parental rights until and unless the Division can surmount the four-part threshold mandated by statute and more than twenty-five years of decisional law. See A.W., supra, 103 N.J. at 607 (implementing the four-factor test, later codified by the Legislature in N.J.S.A. 30:4C-15.1(a)).

This appeal comes to us encased in a double layer of deference: first, it is wrapped in the ordinary, albeit substantial, deference to which any trial court's fact-finding is entitled, Rova Farms Resort, Inc. v. Investors Insurance Company of America, 65 N.J. 474, 484 (1974); and second, it is surrounded by the special deference accorded by the Family Part's particularized jurisdiction in family matters possessed of its acknowledged expertise in the field of domestic relations. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (reinstating the trial court's findings and careful analysis); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418 (App. Div. 2009) (affirming the denial of termination of parental rights of the mother); In re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001) (recognizing that the substantial burden of proof and historic appellate respect for the fact-finder compelled affirming the refusal to terminate parental rights); In re A., 277 N.J. Super. 454, 471-472 (App. Div. 1994) (reinforcing the principle that "[g]reat deference is to be shown to a judge's discretionary decisions in bench trials" by affirming the refusal to terminate parental rights).

Additionally, what we review in this case is entitled to an even greater level of respect because the trial court denied the application to terminate J.G.'s parental rights. More is to be feared from ill-advised grantings of applications to terminate parental rights than by refusals thereof. Terminations should be granted sparingly and with great caution because they irretrievably impair imperative constitutionally-protected liberty interests and scores of centuries of societal family constructs. See New Jersey Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 165 (2010) (observing that in Title Thirty guardianship/termination of parental rights cases, "[courts] are guided by the principle that 'clearly favors keeping children with their natural parents and resolving care and custody problems within the family'" (quoting In re Guardianship of J.C., 129 N.J. 1, 7-8 (1992))).

My purpose is not to question or re-interpret this State's public policy that justifiably niches "the child's need for permanency and stability" above the rights of her parents. In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999). Nor do I take issue with the manner in which the Legislature implemented the federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. 621 et seq., 670 et seq., and its progeny. See N.J.S.A. 30:4C-15(d) (requiring courts to hold permanency hearings for all children who have been in placement for twelve months and, unless there is an exception, requiring the Division to file guardianship complaints for all children in placement for fifteen of the most recent twenty-two months). Ultimately, the objective of the best interests of the child test is to protect the emotional, mental, psychological, and physical well-being of the child. J.C., supra, 129 N.J. at 26. Lastly, I do not begrudge the conduct of the Division in this challenging case. However, we cannot allow the jarring glare of such legislative policies and administrative agency actions to blind us from the essence of what the trial court did in this case: it gave the father an appropriate second chance to reunite with his child. That, in my opinion, is worthy of accord, at least until the father proves (hopefully not) that he is unworthy of the effort.

The trial court presided over the lengthy proceedings; it was thoroughly familiar with the parties, witnesses, and the documentary evidence; and it memorialized its decision in a fifty-eight page written opinion explaining why the Division failed to persuade it by the heightened standard of clear and convincing evidence that J.G.'s parental rights should be terminated. We should scorn the undoing of that deliberative and comprehensive approach unless the trial court's findings were "so wide of the mark" that a mistake must have been made. M.M., supra, 189 N.J. at 279 (citation and quotation marks omitted); see also New Jersey Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 118 (2011). Unlike my colleagues, I cannot conclude that such level of error is manifest in this record.

Moreover, in light of the formidable task of marshalling clear and convincing evidence, as opposed to any less of a standard, the Division's evidence as found by the trial court simply did not measure up.

Clear and convincing evidence . . . "produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established"[; it is] evidence "so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction without hesitancy, of the precise facts in issue."

 

[In re Subryan, 187 N.J. 139, 144 (2006) (quoting In re Seaman, 133 N.J. 67, 74 (1993)).]

 

Such proofs are required to bring about a steadfast assurance in the correctness of the claims sought to be established. See In re Purrazella, 134 N.J. 228, 239-40 (1993). The trial court was unconvinced by the Division, as am I.

Under Title Thirty, the "best interests" test concentrates on whether the parent has harmed or is likely to continue to harm the child. See R.D., supra, 207 N.J. at 110 (citing In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002)). N.J.S.A. 30:4C-15.1(a) sets forth a four-factor test to determine a child's best interest; three of the four factors focus on harm to the child. The first factor asks whether the parent has harmed the child, the second whether the parent is unable or unwilling to eliminate the harm, and the fourth whether the termination of parental rights will do more harm than good. The third factor focuses upon the government's that is, the Division's mandatory efforts to facilitate reunification of the family.

The first statutory factor, N.J.S.A. 30:4C-15.1(a)(1), requires clear and convincing proof that J.G. seriously impaired, or is likely to seriously impair, Tara's health and development. The trial court noted that the Division's guardianship complaint focused mostly upon Tara's relationship with her mother. As for J.G., because he was incarcerated from the time Tara was six months old, the Division accused him of the following:

failing "substantially to provide, maintain, and ensure the safety and well being of [Tara]";

 

failing "to make a permanent plan for the child," thereby "abandon[ing] [Tara] to the care of others"; and

 

substantially failing "to perform the regular and expected functions of care and support for [Tara]".

 

The trial court rejected the Division's arguments, noting, for example, that when J.G. departed in 2004 to begin his most-recent prison term, Tara was safely ensconced with her mother and brother. It was not until nearly four years later, in July 2008, that the mother's substantial personal and parental deficiencies placed Tara (and her brother) at risk, and the family came to the Division's attention.

The trial court further found that J.G. "did not want the children brought to see him in custody," but that he called Tara's mother frequently and legitimately believed that Tara was safe. At one point, when J.G. was released to a half-way facility, he tried to re-establish phone contact with Tara's mother, and was able to visit Tara once before being returned to prison on an outstanding bench warrant. As is implicit in the trial court's findings, J.G. did everything in his power to stay in touch with his child without exposing her directly to the conditions of his confinement. Perhaps this was short-sighted, but his impulse to spare her from the penal institution's visiting facilities is understandable.

After Tara and her brother were removed from R.G.'s custody as part of the Title Nine protective services litigation, J.G. stepped up his letter writing and communicated with Tara by telephone. According to the findings of the trial court, "[a]t no time did [J.G.] ever evince intent to not return nor entirely surrender his paternal interest to his daughter." Accordingly, the court was unable to agree with the Division that it had proven J.G.'s abandonment of Tara or that his relationship with her seriously impaired, or was likely to seriously impair, his daughter's health and development.

The panel majority takes the trial court to task for focusing too narrowly upon the abandonment contention of the Division and then equates J.G.'s situation with that of the incarcerated father, K.G., in New Jersey Division of Youth & Family Services v. T.S., 417 N.J. Super. 228 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011), where we affirmed the termination of K.G.'s parental rights. Such parallelism is unwarranted in termination of parental rights cases, where each matter is fact-sensitive and must be strictly scrutinized on a case-by-case basis.

Unlike J.G., K.G.'s efforts to maintain contact with his daughter were nonexistent. The Family Part found that "K.G. had physically and financially abandoned [his daughter]," and "[h]e demonstrated no past parenting of or relationship with the child. Although [the girl] knew her father's name, he otherwise was a stranger." Id. at 242-42. Moreover, although "K.G. attended the trial . . . [h]e, however, did not testify, present any witnesses or documentary evidence." Id. at 240. In this case, J.G. not only testified at trial and actively presented evidence, but the trial court found him credible and worthy of a second chance, breaking any linkage with the facts of T.S.

The panel majority seeks to hold against J.G. the fact that "[he] does not seek to assume care of the child upon his release but instead supports her continued placement with G.B.," noting the similarity to the circumstances in T.S. This is a double-edged sword. On the one hand, the panel majority is rightly concerned that this abdication in favor of the present caregiver bespeaks a potential to inject instability in the life of the child going forward. However, it also clearly demonstrates what the trial court observed in J.G.: a desire to promote the right living arrangement for his daughter with the possibility for greater parental involvement as J.G.'s life of incarceration faded and he became more integrated into the ordinary society of the community.

The trial court's approach was not to give unbridled control and unlimited time for J.G.'s dream to be achieved. Notwithstanding what would be an unfortunate delay to Tara's permanency if the trial court ended up disappointed by J.G.'s reunification efforts, this was not an unwise exercise of discretion by the trial court, and it deserves our endorsement. Moreover, it was not a mistake of law to proceed in such fashion.

The second factor of the statute, N.J.S.A. 30:4C-15.1(a)(2), focuses attention on whether the parent is unable or unwilling to eliminate harm and delaying permanent placement will add to the harm. The trial court found that J.G., while incarcerated, was deprived by the Division of the necessary resources to enable him to formulate an effective reunification plan. On his own, however, J.G. attempted to comply with all court orders, and made efforts, occasionally stymied by G.B., to remain in contact with Tara. J.G. participated in several prison programs on his own initiative, including courses in anger management, behavior modification, and effective parenting. Troubled by the Division's lackadaisical approach towards J.G. and noting the disproportionate resources provided to Tara's mother, the court found that

[J.G.] was simply ignored when it came to reunification. The Division worker testified she did not look into the type of programs that [J.G.] entered, nor did she compare them to the Division programs. She admitted that no efforts were made to determine if [J.G.'s] programs would have satisfied the Division.

 

While acknowledging that J.G. "does not want to separate [Tara and her older brother] from [G.B.]" and J.G. "just wants to see his kids," the court found that a delayed permanency was an insufficient basis to satisfy the second factor. The court contemplated the probability of a shared custodial arrangement, especially in light of the self-actualized efforts toward reunification observed in J.G.:

[J.G.] did what he was told to [do] yet the Division sought to terminate his parental rights without any opportunity toward rehabilitation. He wanted to maintain contact with his daughter; he was encouraged to continue contact and did so on a regular basis. He built a rapport with both children by the constant communication. No evidence was presented from the Division that the children or their mother objected or rejected his efforts. He has done nothing to dampen the relationship and never wishes to be cut off from his daughter.

The panel majority holds that by asserting a mere right to visitation, without more (and thereby impeding Tara's permanent placement), J.G. is disqualified from retaining his parental rights. Although it is an exaggeration (but perhaps not much of an exaggeration) to say that if such were the state of our law, then thousands nay, hundreds of thousands of non-custodial parents who enjoy and desire only visitation rights would be in jeopardy of losing their parental rights, or at least become vulnerable to having factor two of N.J.S.A. 30:4C-15.1(a) proven against them.

In fairness, the panel majority's proper concern for a final resolution of Tara's placement makes the question of the Division's satisfaction of factor two a closer question. If the issue is a toss-up, then it cannot be fairly said that the trial court erred as a matter of law, and its finding that the proofs put forth were unconvincing should not be gainsaid. A tie in the convincing power of the proofs does not satisfy the clear and convincing standard. See generally, Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 101(b) (2011).

The third factor, N.J.S.A. 30:4C-15.1(a)(3), requires proof by clear and convincing evidence that the Division "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." The trial court observed that "[t]he Division offered every possible opportunity to [Tara's mother] in aid of reunification and rehabilitation," but "two years [of] attempting to rehabilitate the mother [was] all to no avail." In contrast, J.G. received

one visit from the Division and one phone call from the adoption worker. No one visited him while at Rahway [State Prison]. No one discussed visitation, but said he must first see a psychologist. No one recommended or suggested any programs to help him. No one told him that telephone calling cards were available from the Division. No one discussed plans for housing. He asked for a school status report for his daughter but none was provided. No one spoke to him about a plan for his daughter.

The trial court commended J.G. on his self-initiated efforts, noting the following:

{J.G.], without the aid of the Division, sought out and entered several programs in aid of his rehabilitation. His efforts were disregarded and left undetermined the effect of rehabilitation. It is clearly understood why the Division focused attention on the mother as she was the primary caretaker so long as the Division does not ignore or disregard the other parent . . . as they did in this case. As a result, the Division has failed to establish by clear and convincing evidence that reasonable efforts to provide services were made to [J.G.].

The panel majority soft-pedals these findings and comes away satisfied as a matter of law no less that the Division provided J.G. with all that he was due, mainly because "J.G. does not seek true reunification as a parent, with the associated responsibilities and obligation to care for his daughter." This is a Catch-22. In light of the prison-centric, self-directed services in which J.G. participated, it was quite likely, as the trial court recognized, that had the Division done even a bare minimum for J.G., he might likely have been both willing and able to take on more of the traditional trappings of parenthood. How can he now be criticized for "not seek[ing] true reunification" when the very agency charged with assistance in that regard utterly neglected him? This is what the trial court found, and this is what we are obliged to respect. I cannot agree that throughout the length and breadth of the Division's involvement with this family, its paltry two contacts with J.G. were sufficient, as a matter of law, to prove factor three by clear and convincing evidence. Of course, the fact that I am not so persuaded is beside the point. The trial judge was not persuaded, and that is what counts.

Lastly, the trial judge found the Division's evidence of the fourth factor that termination of parental rights will not do more harm than good was not proven by clear and convincing evidence. Indubitably, the trial court struggled with the evidence touching on this factor. The court noted the "strong and permanent bond" between Tara (and her brother) and G.B. However, having listened to the witnesses and reviewed all of the evidence, the court also found "there is also a strong bond between the father and child."

The panel majority finesses this fact-finding by the Family Part, and makes its own determination that "Tara's relationship with her biological father is tenuous at best. She saw him only once during the six years that he was incarcerated." Focusing on Tara's genuine need for permanency, and being soothed by G.B.'s unenforceable promise of visitation, the panel majority substitutes its point of view for that of the trial court by finding "[t]he preservation of this household should neither be delayed nor interrupted by what is essentially a request for guaranteed visitation." I cannot subscribe to this trivialization of J.G.'s attachment to his daughter.

After fifty-seven pages of analysis, the trial court decided the following:

The appropriate remedy is to return this matter to the F.N. calendar. [J.G.] should be permitted to engage in therapy through Division approved programs, a bonding and assessment evaluation should be performed between [J.G.] and [Tara]. The outcome will then enable the [c]ourt to make the appropriate decision whether or not to terminate parental rights.

This is emblematic of the proper exercise of discretion by the Family Part in these troubling cases. The trial court recognized that there was much work to be done, but it was willing based upon J.G.'s actions, not just his words to see if Tara's father could achieve the appropriate level of rehabilitation in order to accomplish reunification in a reasonable period of time. The problems of prisoner re-entry in this case were, as noted by the trial judge, made even more difficult because of the lack of reunification services provided to J.G.

Former inmates face daunting individual challenges when they are released to build productive lives, including finding jobs, housing, health care, and avoiding further involvement with the criminal justice system. In many instances it is too much to expect such persons to be immediately available for the care and support of their separated children. As long as reunification is not unduly protracted and proceeds under the watchful eye of the Division and the Family Part, we should not take steps to thwart such endeavors.

The panel majority's approach makes the Family Part's role a nullity and renders the restoration of a father-daughter relationship impossible. G.B.'s hollow promise of visitation is an insufficient pier from which to cast aside the Family Part's measured means of attempting to reconstruct this family.

The four factors of the best interests test place an effective brake upon unwarranted terminations of parental rights. In their application, the factors "are not [discrete] 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." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008). When viewed as the trial court viewed them, those factors were properly evaluated and applied. The capacity for rehabilitation and reunification comes along so infrequently in these cases that when a trial court identifies such potential, we ought not reject it.

Given the vagaries of human behavior, I have no illusions that it is certain J.G. will (or did, since more than a year has already passed since the dismissal of the guardianship complaint and revival of the protective services proceeding) fulfill the unexpressed, but obvious, expectations of the trial court. But even if J.G. fails, the ultimate termination of parental rights was not inevitably foretold by the record in this case, and any harm caused by a delay in Tara's permanency will be mitigated by her being in a safe household with G.B. and her brother during the pendency of this appeal.

I respectfully dissent.

 

1 The identity of Kyle's biological father was never positively determined.

2 Although not specifically noted by the trial judge, Tara spent the first month of her life in the hospital.

3 The trial judge referred specifically to Black's Law Dictionary, 8th Edition and The American Heritage Dictionary of the English Language, 4th Edition.

4 The trial judge here referred to Kyle as one of J.G.'s "kids" although J.G. is not Kyle's biological father and acknowledges having no parental rights as to Kyle.

5 In her brief, the Law Guardian points out the real-world consequences of foster care placement, even with a relative. In such cases, the Division must approve all medical treatment and out-of-state travel and the grandmother must observe all licensing requirements or risk removal of Tara. See N.J.A.C. 10:122C-2.

6 If G.B. adopts Tara, she is under no legal obligation to permit visitation with J.G, as open adoptions are not enforceable in New Jersey. In re Adoption of a Child by W.P. 163 N.J. 158, 171-73 (2000). An open adoption "reflects an agreement between the adoptive parents and one or more members of the child's biological family permitting visitation after the child has been formally adopted." Id. at 172-73.

7 In the hundreds of opinions of our court reviewing applications to terminate parental rights, there appears to be only one reported instance where we reversed the Family Part's denial of such an application: N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76 (App. Div.), certif. denied, 180 N.J. 456 (2004).