NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5396-09T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.J.R.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.R. and A.F.R., minors.

__________________________________

April 12, 2011

 

Submitted March 15, 2011 - Decided

Before Judges Parrillo, Espinosa and Skillman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-209-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lorena L. Salzmann, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, attorney for minors A.R. and A.F.R. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant A.J.R.1 appeals from an order of the Family Part terminating his parental rights to his son A.R. We affirm.

Defendant and his then girlfriend F.P. are the biological parents of three children, Mary, born May 19, 1992; John, born January 31, 1994; and A.R., born April 14, 1997. In addition, F.P. is the mother of A.F.R., born on August 1, 2000. Only A.R. is the subject of the termination proceeding from which this appeal arises.

As concerns A.R., a special needs child, the Division of Youth and Family Services (DYFS or Division) first became involved when it received a referral from the Newark Police Department that A.R. had fallen out of a three-story window and was taken to the hospital. The matter was investigated and DYFS substantiated neglect, although the record does not indicate against whom. Thereafter, DYFS developed a case plan for the family, including the assistance of a home health aide and a psychological evaluation of F.P. and defendant. DYFS closed the matter on December 18, 2001.

DYFS received another referral in May 2005 after it was reported that A.R. arrived at school with a mark that appeared to be a cigarette burn on his arm. A.R. gave varying accounts of the burn, including that F.P. burned him because he was misbehaving in school. Although DYFS could not confirm a perpetrator, physical abuse was substantiated. Because DYFS was concerned about F.P.'s and defendant's ability to parent, it was determined that it would be "appropriate to proceed with services to assist the . . . family[,]" which included psychological evaluations, family therapy, a parent aide, furniture for the children, and a drug assessment for defendant.

A few months later, in November 2005, DYFS received another referral, this time from the home health aide, who reported that defendant was using drugs and beating the children. During their interviews with the DYFS worker, the children, including A.R., expressed fear of defendant. F.P., who is cognitively delayed, also told the DYFS worker she believed defendant "hits the kids too much" and that he might be using drugs. Although the allegations of abuse were unsubstantiated, DYFS moved to appoint a law guardian with temporary custody of A.R. and his siblings. On the return date, the court awarded legal custody to DYFS, but allowed the children to continue residing with F.P. and defendant. A case plan was developed pursuant to which the services of the home health aide would continue and defendant would undergo a drug assessment. The goal of the services was family stabilization and F.P. and defendant "agreed to cooperate with these services."

Defendant underwent a substance abuse assessment on December 5, 2005. An instant drug screen test revealed a positive read for cocaine. The assessment recommended intensive outpatient treatment at the C.U.R.A. facility in Newark, which defendant successfully completed on June 28, 2006.

Defendant underwent a psychological evaluation on February 21, 2006 by Dr. Mark Singer. The results suggested that defendant "minimizes personal faults and holds unrealistically positive perceptions of his level of psychological functioning." Further, defendant "appear[ed] to have significant difficulty acknowledging and responding to the needs of others." Defendant presented as "irritable, engag[ed] in pessimistic thinking, and ha[d] an inflated sense of self-worth." He also appeared to present with "[f]eelings of depression mixed with anxiety."

As per Dr. Singer's recommendation, A.R. underwent a psychological evaluation performed by Dr. Yasir Ahmad, who concluded A.R. suffered from ADHD and was developmentally delayed. Dr. Ahmad recommended medication for A.R.'s hyperactivity and that he undergo a neuro-cognitive test to ascertain his delay, which was performed on June 6, 2007. The evaluation revealed that A.R. is developmentally disabled and recommended he "be placed in a[n] environment designed specifically for children with profound neurodevelopmental defects." It was also determined that A.R. presents with both dyslexia and apraxia, requiring services of a speech language pathologist, audiologist, pediatric occupational therapist, and pediatric neurologist.

Pursuant to another of Dr. Singer's recommendations, DYFS referred the family to Final Stop Family Services for therapy. The therapist reported that the family was compliant with therapy, but that their progress in communicating with one another appeared to be deteriorating, particularly the children's ability to communicate with one another and with others. By November 16, 2006, defendant had completed twelve hours of parenting classes with the Family Service Bureau of Newark (Bureau), who also reported that defendant's "attendance and high level of participation in the group has shown his high motivation level and genuine interest in learning and incorporating positive parenting skills into his family life."

However, on May 30, 2007, DYFS received another referral concerning A.R. The child's teacher was concerned because "[A.R.] had come to school at least two days with feces in his pants[,]" and his odor required that he be sent to the nurse. A DYFS worker spoke to defendant and F.P. about this incident and advised them that they "have to do a better job with their children's hygiene."

On October 5, 2007, DYFS notified defendant by letter that an appointment had been set up for him to obtain Supplemental Security Income (SSI) for A.R. The letter advised defendant of the documentation he would need to bring to the appointment, inquired whether defendant had Medicaid for A.R., and asked that DYFS be notified as soon as possible of the Medicaid status. The appointment was only attended by a DYFS caseworker and F.P., who together prepared the SSI application, which was eventually accepted upon obtaining defendant's signature.

In response to requests for information from DYFS, A.R.'s teacher, Sharon Hizer, indicated that he was not performing at grade level but instead at kindergarten level. She also revealed that A.R.'s "clothes are dirty at times" and that while "[t]he students are required to wear uniforms[,]" A.R. "stated that he cannot because [the uniforms] are too tight." Moreover, Hizer indicated she had no contact with defendant and F.P. because she did not have a working telephone number. Additionally, she was concerned that A.R. might be "hearing voices."

A.R. and his siblings were removed from defendant and F.P.'s home by DYFS on January 31, 2008 due to "educational neglect, insufficient housing and poor hygiene." On February 1, 2008, the Family Part judge ordered that removal was

necessary to avoid ongoing risk to the life, safety or health of the child(ren) . . . because the parents have educationally neglected all four of their children; the mother is not capable of independently parenting these children and it is the father's responsibility to attend to their educational, medical and psychological needs. The father has not gone to school or [child study team] meetings for any of the children, and all children are doing very poorly in school, the parents have not complied with court orders requiring them to obtain SSI benefits, schedule medical appointments for [A.R.], schedule mentoring intakes for the children, the children are sent to school dirty and malodorous and they do not have appropriate housing . . . .

 

The court further determined

that reasonable efforts to prevent placement prior to removal were made, namely: the Division instructed the parents how to obtain SSI benefits, notified the parents of the way to obtain referrals for medical treatment, attended CST and school meetings on behalf of the children, provided transportation assistance, provided [Division of Developmental Disabilities] referrals, formerly provide a Parent Aide, and instructed the parents how to apply for mentors . . . .

A.R. and A.F.R. were placed with their paternal aunt, defendant's sister, and have resided there for the duration of this matter. A fact-finding hearing was conducted on May 1, 2008, after which the judge found clear and convincing evidence that defendant and F.P. abused or neglected their children.

DYFS continued to provide services to A.R. and his siblings after their removal from defendant's and F.P.'s care. DYFS assisted the aunt in attending A.R.'s child study team meetings and with scheduling medical appointments and evaluations for A.R. DYFS also referred A.R. to the East Orange General Hospital Child and Adolescence Psychiatric Services. According to the DYFS guardianship case manager, the aunt was the most active in addressing A.R's. and A.F.R.'s needs.

On April 10, 2008, A.R. underwent a court-ordered psychiatric evaluation by Dr. Ronald Crampton. Dr. Crampton concluded "that [A.R.] is a complex case that requires attention beyond what has been provided." He recommended that "[A.R.] be referred to a residential or inpatient facility that is professionally staffed to carefully identify and treat his myriad problems[,]" that "plans for reunification be deferred[,]" and that the aunt "be given precedence as the primary caretaker."

Defendant also underwent a court-ordered psychological evaluation by Dr. Singer on July 23, 2008. Dr. Singer found that "[t]he data suggest that both mother and father together neglected the needs of these children whom, based upon the available information, have special needs." As was found in the original evaluation, defendant continues to "minimize[] personal faults and hold[] unrealistically positive perceptions of his level of psychological functioning." Dr. Singer concluded that "at present, [defendant] is limited in his ability to respond effectively to the needs of his children [but] with appropriate interventions, he may become capable of functioning as a minimally adequate parent." Dr. Singer recommended that defendant and F.P. "continue to participate in visits with their children[,]" that defendant "must maintain employment[,]" that both defendant and F.P. "maintain appropriate housing," and that both defendant and F.P. "participate in individual psychotherapy[,]" among other recommendations.

Defendant was referred to the Bureau for psychotherapy as recommended by Dr. Singer. Defendant, however, only attended his intake appointment on November 5, 2008, but did not attend any individual sessions and, as of February 9, 2009, did not respond to the therapist's attempts to contact him.

On February 23, 2009, the Family Part judge entered a permanency order, accepting DYFS's plan of termination of defendant's and F.P.'s parental rights followed by adoption of A.R. by his paternal aunt. In April 2009, DYFS filed a complaint and order to show cause, seeking guardianship of A.R. and A.F.R. and termination of parental rights.2

The court also ordered psychological evaluations of defendant and F.P. as well as bonding evaluations of A.R. and A.F.R. with defendant, F.P. and their aunt. On September 2, 2009, defendant underwent a psychological evaluation by Dr. Leslie Williams, who found that defendant "presents as someone with an inflated sense of self-worth which covers over feelings of inadequacy and low self-esteem." The psychological test results indicated defendant "tends to blame others for his difficulties and rarely takes responsibility for his actions." Furthermore, his "personal relationships tend to be shallow and self-serving, and he is not above using others to meet his own needs." According to Dr. Williams, defendant s psychological functioning would affect his ability to parent, as was evident during defendant's custody of John. Dr. Williams ultimately concluded that

[defendant] is not capable of providing adequate parenting for the children . . . he has a history of noncompliance, he may say he s going to do things, but really doesn t do them even though I believe he

knows. . . .

 

I believe he knows what . . . he [needs] to do but chooses not to do . . . those things. I believe that he s had more than enough time. I believe that this is not . . . something that was just thrust on him, that [defendant] has been involved in the system the children have been involved in the system for a while . . . .

 

So I think it s just consistent with his stance of he ll say what he s [g]oing to do, he s not going to do it, and meanwhile, you know, the kids remain with another relative and [defendant] chooses not to do what he needs to do.

 

Dr. Williams conducted a bonding evaluation of defendant with A.R. and A.F.R., and concluded that A.R. does not view defendant "as a stable parental figure." Dr. Williams also conducted a bonding evaluation of the aunt with A.R. and A.F.R., and opined that both children were bonded to their aunt and view her "as their psychological parent[]" and that neither child "would suffer severe and enduring psychological harm if [defendant] and/or [F.P.'s] parental rights were terminated." According to Dr. Williams, the aunt appeared to grasp the challenges A.R. presents because "she was firm, she was responsive, she was direct, and [A.R.] responded to that style." In contrast, Dr. Williams concluded that returning A.R. to defendant posed risks to A.R. because defendant neither understands the extent of A.R.'s issues nor the proper way to deal with those issues.

Defendant's expert, Dr. Albert Griffith, offered an opposing view. He viewed defendant's responses to a parenting questionnaire as demonstrating "genuine growth" as they were "more nuanced, more insightful" than the responses he gave two years prior during the 2007 evaluation. As a result of this second evaluation, Dr. Griffith opined that defendant "did not have a diagnosable condition that would rule out his ability to parent[,]" but needed more time to obtain appropriate housing to accommodate him and the children.

Dr. Griffith also conducted bonding evaluations of A.R. with the aunt and, separately, with defendant. A.R. told Dr. Griffith that he would prefer to live with his aunt because of the care she provides him. While Dr. Griffith reported that A.R. "respected [defendant] as the head of the family[, i]t was not clear that he got security from him . . . ." Dr. Griffith recognized a need for permanency in A.R.'s life but also recommended more time be given to defendant for him to find suitable housing and to stabilize his relationship with his new partner.

Dr. Williams disagreed with this recommendation, stating:

I think that [defendant] hasn't made much progress even though he has known what he's supposed to do. Again, I think as I said before, he's had more than enough time to do -- get separate housing, get bigger housing to be -- to find out more about the children's issues . . . I do not believe that he has made significant progress. I think he's had more than enough time to do what he was supposed to.

 

Moreover, Dr. Williams believed providing defendant with more time or services would not help him become a better parent.

During the ensuing three-day guardianship trial, the court accepted F.P.'s voluntary surrender of her parental rights. In addition to the aforementioned facts, evidence was adduced that despite being informed by DYFS that he needed a larger residence to accommodate his children should they be placed with him, defendant instead moved from his two-bedroom apartment into his new girlfriend's one-bedroom apartment. Furthermore, even though aware that he would need to alter his work schedule in order for the children to be returned to his care and custody, defendant did not provide a back-up caretaker for the hours between school dismissal and the end of his work day, except his new girlfriend, who happened to work the same hours as defendant.

Defendant testified on his own behalf. He said he planned to marry his girlfriend on October 23, 2010. Although both he and his girlfriend work until about 4:30 p.m. each day, defendant has a friend living near A.R.'s school who could take care of him while they were at work, but admitted he never informed DYFS of this person. Defendant testified that he was attending weekly classes at the West Hudson Family Success Center to learn how to address A.R.'s issues and that he had been attending those classes for about a month. He admitted, however, to not visiting A.R.'s school since he lost custody of him.

At the conclusion of the evidence, the court found that DYFS proved by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1a and, therefore, terminated defendant's parental rights to A.R. Specifically, DYFS proved the first prong, that "[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-15.1a(1), because defendant knew of F.P.'s limited capabilities and A.R.'s special needs yet "seemed to not take a particularly strong interest at that time to see that those needs were being met." As to prong two, 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[,]" N.J.S.A. 30:4C-15.1a(2), the court found that defendant demonstrated an unwillingness in "not always be[ing] straightforward with the psychologists, with the caseworkers," and that, although defendant took numerous courses for drug treatment, anger management, and parenting skills, his behavior did not appear to change. As to prong three, that DYFS "has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[,]" N.J.S.A. 30:4C-15.1a(3), the court found that DYFS complied "to the fullest extent" because of the ample services provided to defendant. Finally, as to prong four, that "[t]ermination of parental rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1a(4), the court found credible Dr. Williams's testimony that "there would be no severe enduring harm" to A.R. in terminating defendant's parental rights.

On appeal, defendant raises the following issues:

I. DYFS FAILED TO ESTABLISH EACH ELEMENT OF N.J.S.A. 30:4C-15.1.

 

A. DYFS Failed To Prove Harm To [A.R.].

 

B. [A.J.R.] Had Provided, And Was Willing To Provide, A Safe And Stable Home.

 

C. DYFS Did Not Provide Reasonable Services and the Trial Court Failed to Consider Alternatives to Termination.

 

D. DYFS Did Not Prove That Terminating Rights Would Not

Do More Harm Than Good.

 

II. [A.J.R.] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE

GUARDIANSHIP TRIAL (not raised below).

We find no merit to these contentions.

As a threshold matter, we note that great deference is afforded the Family Part's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). This is particularly true when findings are based on "the trial court's credibility determinations." M.M., supra, 189 N.J. at 279; see also Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Thus, we "will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." E.P., supra, 196 N.J. at 104; see also In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).

That said, we proceed to the applicable law. Termination of parental rights is warranted when the Division establishes 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 [D]ivision 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-15.1a; N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]

 

These "four 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Notably, the best interests standard is applied in light of "New Jersey s strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

Harm, in the context of the first prong of the statutory test, "involves the endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. "[T]he focus [of this prong] is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The Court has recognized that "the attention and concern of a caring family is 'the most precious of all resources.'" In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986)). "A parent's withdrawal of that 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.; see also K.H.O., supra, 161 N.J. at 352-54.

Under the second statutory prong "[n]o more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." A.W., supra, 103 N.J. at 607. In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (quoting N.J.S.A. 30:4C-15.1a(2)).

The third prong of the "best interests" standard contemplates DYFS's efforts to reunify the parent and the child by assisting the parent in addressing the problems that led to placement. K.H.O., supra, 161 N.J. at 354. Such efforts include:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

 

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

 

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 

(4) facilitating appropriate visitation.

 

[N.J.S.A. 30:4C-15.1c.]

 

However, DYFS's efforts should be measured not by their success but against the standards of adequacy in light of the family's needs in a particular case. D.M.H., supra, 161 N.J. at 390.

Lastly, the fourth prong addresses whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). The focus of this prong is whether "the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355.

We agree with the trial judge that all four of these prongs have been satisfied by clear and convincing evidence. A.R. has been harmed by defendant's failure to attend to the special needs of this child, which continued well beyond A.R.'s removal from defendant's custody and placement with defendant's sister. Among other omissions, defendant failed to attend child study team meetings and to provide A.R.'s school with contact information to keep him informed of the child's progress or lack thereof. Moreover, defendant jeopardized A.R.'s eligibility for receipt of Social Security benefits due to the child's special needs when he failed to attend a scheduled appointment. Whether because of his own history of drug use or an excessive work schedule, defendant's inattention to A.R.'s educational, physical and emotional development is all the more glaring in light of A.R.'s mother's own severely limited abilities.

Despite having attended various anger management and parenting skill classes, defendant nevertheless presented to Dr. Williams, as late as September 2009, as "not capable of providing adequate parenting for [A.R.,]" thus demonstrating either an unwillingness or inability to provide A.R. with a safe and stable home. Indeed, defendant failed to present an adequate plan for A.R.'s housing or after-school care in the event A.R. were to be reunited with defendant. In this regard, the trial judge found that defendant "had more than ample time to make the right steps, get another place, get a larger place,

. . . get involved with the school and the child[,]" evidencing an unwillingness or inability to eliminate the harm faced by A.R.

As noted, defendant remains unable to adequately parent despite having been afforded the opportunity to receive ample services provided by DYFS. These included anger management classes, parenting skills classes, psychotherapy, drug treatment, and psychological evaluations. In addition, DYFS arranged for a home health aide and family preservation services. DYFS also made appointments for F.P. and defendant, and its caseworker attended those appointments with F.P. as well as A.R.'s case study team meetings at the child's school. We are satisfied that DYFS provided reasonable services to defendant.

Lastly, the evidence persuasively demonstrates that termination of defendant's parental rights will not do more harm than good. Dr. Williams testified that A.R. would suffer no permanent harm if defendant's parental rights were terminated. Dr. Griffith similarly testified that "[A.R.] looks to his aunt for nurturing and protection." Both Dr. Williams and Dr. Griffith concluded that while A.R. recognizes defendant as his father, he receives his care, nurturing and security from his aunt. As the trial court noted, it was only because of the aunt's proactive response to A.R.'s needs and her ability to control A.R.'s behavior that A.R. was able to stay out of a residential placement. Indeed, A.R. consistently expressed his desire to remain with his aunt, who was providing sufficient care for his special needs and who could appropriately handle his behavior. Significant for present purposes, Dr. Griffith testified that "a failed placement with [defendant would] be detrimental to [A.R.]"

In sum, there is substantial credible evidence to support the trial judge's finding that all four prongs of the best interests test have been satisfied, warranting termination of defendant's parental rights. We find defendant's remaining contention of ineffective assistance of trial counsel lacking sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We use initials and/or fictitious names for all the parties in order to maintain the anonymity of the family.

2 On August 13, 2009, John was returned to defendant's custody. While in defendant's custody, John violated his parole from a prior detention and was returned to the juvenile facility. In early 2010, defendant was charged with abandonment and John was returned to his aunt's custody. The abandonment proceedings were ongoing at the time of the termination trial.