NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.F.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3581-09T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.F.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF I.M., a minor.

__________________________________

March 11, 2011

Submitted February 28, 2011 Decided

Before Judges Rodr guez, Grall and Coburn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-61-10.

Yvonne Smith Segars, Public Defender, attorney for appellant E.F.M. (Kimberly R. Johnson, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Attorney General of New Jersey, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

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

PER CURIAM

E.F.M., the birth father of I.M., a two-year-old boy, appeals from the February 23, 2010, Judgment of Guardianship terminating his parental rights to I.M. E.F.M. has never lived with I.M. due to E.F.M.'s homelessness or incarceration. We affirm.

C.C., the birth mother, suffered from psychological and physical illnesses, including epilepsy, breast cancer and diabetes. Two weeks prior to I.M.'s birth, Dr. Higgins of Underwood Hospital contacted DYFS to report that C.C. was thirty-two weeks pregnant, suffering from severe anxiety and depression and had issues with illicit narcotics use. One week prior to giving birth to I.M., C.C. tested positive for cocaine, opiates and barbiturates.

DYFS opened a case for services due to concerns about C.C. s health and homelessness. C.C. identified E.F.M. as the birth father of I.M.

On June 9, 2008, C.C. gave birth to I.M. He was born premature and weighed three pounds, two ounces. I.M. tested positive for narcotics and suffered withdrawal symptoms. He was diagnosed as medically fragile and remained in the hospital for three weeks. He was discharged to a group home. At the time, C.C. was homeless. E.F.M. was incarcerated, serving a sentence for aggravated assault and distribution of controlled dangerous substances (CDS). Following a fact-finding hearing four months later, Judge Octavia Melendez found that C.C. and E.F.M. had placed I.M. at a substantial risk of harm.

In July 2008, I.M. was placed in the home of K.O., a friend of C.C. E.F.M. was unable to provide a home for his son due to repeated incarceration and lack of stable housing or employment. When a DYFS worker visited K.O. to check-in on I.M. in September 2008, K.O. mentioned that C.C. and E.F.M. had been there that day to visit I.M. The worker tried to reach E.F.M. and was informed that he no longer resided at the address given to DYFS. When a worker ran into E.F.M. on the street, E.F.M. stated that he and C.C. were living at her sister s home where there was no telephone. E.F.M. gave the worker a number where he could be reached. He admitted that he was unemployed and had no prospects for employment.

E.F.M.'s drug use began at age fifteen with alcohol and marijuana. By age sixteen, he was using cocaine and heroin. He contracted hepatitis C through intravenous drug use. E.F.M. used large quantities of cocaine and heroin on a daily basis, a habit he financed by dealing drugs. He claims that he has not used drugs since 2002.

E.F.M.'s history of convictions began in 1978 and includes convictions for possession of CDS, distribution of CDS, robbery, armed robbery, aggravated assault, assault with a deadly weapon, and aggravated assault on a police officer. He was released on parole several times and repeatedly violated the terms of his release. E.F.M. also violated the terms of a probationary sentence. As a result, he was continually in and out of prison during the past thirty-three years.

Larry N. Seidman Ph.D. performed a court-ordered psychological evaluation of E.F.M. Dr. Seidman noted that E.F.M. "presented as a reformed man who perhaps has shed the skin of violence and imprisonment and was now a man of peace, non-violence, charitable and giving by nature." However, Dr. Seidman noted, "his transformation remains open to the age-old question as to whether a man is capable of changing himself to that degree and under what circumstances and for how long can he continue to maintain that change." After E.F.M. cared for C.C. when she had a seizure in the presence of Dr. Seidman, he noted that E.F.M. "showed remarkable poise under the pressure and stress of [C.C. s] seizure" and "[h]is dedication to the mother of his two-month-old child seemed undeniable."

However, E.F.M. s results on the Personality Assessment Screener "evinced significantly elevated scores on the Hostile Control, Social Withdrawal, and Alienation subscales . . . bringing his PAS total within the midrange of clinical significance." Dr. Seidman noted that E.F.M. s "full scale score fell well within the superior range of intellectual functioning." However, on the Wechsler Abbreviated Scale of Intelligence, E.F.M.'s reading skill was only adequate.

Dr. Seidman opined that, although E.F.M. s "elevated score on the Social Withdrawal subscale further reflects his propensity toward social detachment and discomfort in close relationships, his elevated score on Alienation subscale implies failures in forming close relationships, rather than a pattern of social withdrawal." Dr. Seidman further opined that "[E.F.M.] can be described as having an unsatisfactory emotional life, due to a propensity toward suspicious, sensitive, and anxious behavior." In addition, he stated that "[t]his amalgamation of insecurity, indecisiveness, and repressed aggression, may cause [E.F.M.] some significant difficulties in acquiring the self-sufficiency, consistency, and control necessary to take adequate responsibility for his newborn." Finally Dr. Seidman concluded that E.F.M. "appears to be seriously split-off between the kindly and charitable man who presented at this session and the antisocial, self-serving person who amassed what appears to be an extensive criminal history" and that "it cannot be said with a reasonable degree of psychological certainty that [E.F.M.] would responsibly care for his newborn."

DYFS records indicate that: as of April 20, 2009, C.C. was "very ill and [was] in and out of the hospital"; E.F.M. was still incarcerated and not due to be released until March 2010; K.O. had requested to adopt I.M.; and there are no other suitable relatives seeking to care for I.M. DYFS filed a complaint for guardianship.

Chester R. Sigafoos, Ph.D. conducted a second psychological evaluation of E.F.M. on December 15, 2009. He pointed to E.F.M. s prolonged cocaine and heroin habit and stated that "results of testing show the presence of an obsessive compulsive personality disorder which is consistent with one who has an addictive personality." He noted that "[E.F.M.] has problems in establishing close attachments to other people." Dr. Sigafoos also stated that E.F.M. suffered from antisocial and narcissistic personality conditions. He further noted that "[E.F.M.] lacks a consistent and well defined coping style and will alternate, ineffectively, between expressive and ideational ways of dealing with situations" and that "[E.F.M.] has fewer resources available than most for dealing with stressful situations."

Dr. Sigafoos concluded that "[E.F.M. s] limited coping capacities will raise problems when it comes to being able to parent a child." He further concluded "[E.F.M. s] relatively closed mind will limit his ability to function effectively as a parent and respond in an understanding and accepting way to the frequently changing nature, demands, and expectations of children as they grow up." Dr. Sigafoos determined that E.F.M. could not "effectively parent his child and insure his safety and well-being." Finally Dr. Sigafoos opined that E.F.M. s prognosis was poor because his "psychopathological disorders will be difficult to treat" and that "treatment will be effected by [E.F.M. s] lack of insight, lack of motivation, and lack of commitment to change."

That same day, Dr. Sigafoos conducted a bonding evaluation of E.F.M. s relationship with I.M. He noted that prior to the evaluation, E.F.M. had not seen I.M. since I.M. was five-months-old. Dr. Sigafoos observed that I.M. paid little attention to E.F.M., seemed more interested in toys and books in the room and did not make eye contact with E.F.M. He further noted E.F.M. s history of drug addiction and absence from I.M. s life. Dr. Sigafoos predicted that "the likelihood of [E.F.M.] being able to find and retain employment that s going to provide him financial stability is remote." He opined that the risk that E.F.M. would fail to maintain a "drug-free and crime-free lifestyle, places [I.M.] at a further risk factor because of a lack of permanency."

Dr. Sigafoos also performed an evaluation of the bond between K.O. and I.M. on November 10, 2009. Dr. Sigafoos testified that "[t]here is a physical, psychological connection between" I.M. and K.O. "[t]hat was not seen during the bonding evaluation with [E.F.M.]." He stated that "there was a very good relationship between" I.M. and K.O. He further stated that I.M. responded to K.O. s parenting style and that a bond had developed between I.M. and his foster siblings. Dr. Sigafoos determined that a secure bond existed between K.O. and I.M. and that K.O. provided for the needs of I.M. In his bonding evaluation report, Dr. Sigafoos concluded that "[I.M.] is strongly attached to the current caregiver and will suffer serious enduring harm if not allowed to have a continued relationship with [K.O.]." He also concluded that "[I.M.] will suffer a grief and separation reaction if removed from [K.O.], and [E.F.M.] does not have the capacity to help [I.M.] to recover from this loss." Dr. Sigafoos concluded that "[E.F.M. s] psychological pathologies impede his ability and capacity to appropriately manage [I.M.]" and that "[I.M.] has shown that for him, his psychological parent is not [E.F.M.], but rather [K.O.]." At the time of trial, C.C. had not provided DYFS with her contact information. Her whereabouts was unknown, and she failed to appear for trial. Dr. Sigafoos expressed the unrefuted opinion that it would be in I.M.'s best interests to terminate the parental rights of E.F.M. and C.C. so that the child could be adopted by K.O.

At trial, Saran Washington, a DYFS caseworker, testified that she observed that I.M. "has created a strong relationship with [his foster] family." She stated that I.M. was very obedient to K.O. and that "[K.O.] has expressed interest in adopting him, and . . . their relationship [was] as if she was his mother and he was her biological child." Washington also noted that the two siblings in the home "interact very well, according to their ages, but . . . it s as if he s [an] original member of the family." During a visit from Washington, K.O. stated that she loved I.M. and that she couldn t imagine her family without him.

On appeal, E.F.M. contends:

THE TRIAL COURT'S TERMINATION OF THE FATHER'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF ADMITTED EVIDENCE AND TESTIMONY.

A. The Trial Court Erred In Concluding That DYFS Had Demonstrated, By Clear And Convincing Evidence, That The Father's Relationship With His Son Has Caused Or Will Cause Enduring Harm And That The Father Is Unwilling Or Unable To Eliminate The Harm Facing His Child.

B. The Trial Court Erred In Concluding That DYFS Had Demonstrated, By Clear And Convincing Evidence, That It Had Made Reasonable Efforts To Provide Services To The Father.

C. The Trial Court Erred In Failing To Adequately Consider Alternatives To Termination Of Parental Rights.

D. The Trial Court Erred In Concluding That DYFS Had Demonstrated, By Clear And Convincing Evidence, That The Termination Of The Father's Parental Rights Would Not Do More Harm Than Good.

DYFS and the Law Guardian for I.M. urge affirmance.

The courts "have consistently imposed strict standards for the termination of parental rights." In re. Guardianship of K.H.O., 161 N.J. 337, 347 (1999) (citing In re. Guardianship of J.C., 129 N.J. 1, 10 (1992); In re. Guardianship of K.L.F., 129 N.J. 32 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986)). However, "[p]arental rights, though fundamentally important, are not absolute." Ibid. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing J.C., supra, 129 N.J. at 10). Thus, "[t]he 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. The Legislature has set the standard for determining the best interest of the child by directing DYFS to consider the following factors prior to initiating a petition for the termination of parental rights:

(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 analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid. (citing Santosky v. Kramer, 455 U.S. 745, 768, 102 S. Ct. 1388, 1402, 71 L. Ed. 2d 599, 616-17 (1982)).

In a written opinion, Judge Octavia Melendez found that DYFS had satisfied the four prongs of the best interests test. Therefore, the judge terminated the parental rights of E.F.M. and C.C. We note that E.F.M.'s contentions are essentially a challenge to the findings by the judge, either as to credibility of witnesses or sufficiency of the evidence. We defer to a trial judge's factual findings when they are based on credible evidence in the record unless we are convinced those findings are "'so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172 (App. Div. 1993)); see also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

After careful review, we conclude that the record contains clear and convincing evidence to support Judge Melendez's findings. She thoughtfully applied the correct legal standards to the facts. She concluded that all four statutory prongs were met and that termination was required. Accordingly, we discern from the record no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in Judge Melendez's February 23, 2010, written decision.