NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.D and R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5630-09T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.D.,

Defendant,

and

R.R.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.D., a minor.

_____________________________________

March 8, 2011

 

Submitted January 20, 2011 - Decided

Before Judges Gilroy, Ashrafi and Nugent.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-108-10.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).

 

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor A.D. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant R.R. (the father), who is incarcerated, appeals from the judgment of the Chancery Division, Family Part, terminating his parental rights to his two-year-old son, A.D. The family court also terminated the parental rights of the child's mother, C.D., but she has not appealed. The Division of Youth and Family Services (DYFS) removed the child from the mother almost immediately after his birth on May 26, 2008, and, since that time, the child has been in the care of his maternal grandmother, who seeks to adopt him.

The father contends that the evidence presented at trial did not prove the four criteria of N.J.S.A. 30:4C-15.1a for termination of his parental rights. Our standard of review on appeal is narrow. A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court s assessment of expert evaluations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Deference is accorded because the trial court had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case," thus sustaining a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). In E.P., the Supreme Court said, "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." 196 N.J. at 104; accord 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).

In this case, the family court appropriately analyzed the evidence within the framework of N.J.S.A. 30:4C-15.1a. We affirm the judgment terminating the father's parental rights essentially for the reasons stated in the written opinion of Judge Mark Nelson dated May 7, 2010. We add the following to summarize the facts and to address specifically the father's arguments raised on appeal.

The day after the child's birth, DYFS received referrals indicating that the father was incarcerated and the mother had a history of mental illness and had been living in a shelter. On June 17, 2008, DYFS filed a complaint against both parents seeking custody of the child. The family court placed the child in the custody, care, and supervision of DYFS, granting physical custody to the maternal grandmother. Since June 2008, the child has been continuously living with the grandmother and her male companion.

A paternity test confirmed that appellant R.R. is the child's biological father. He was originally incarcerated in 1999 on a conviction for armed robbery. He was paroled in June 2007, at which time he met the mother in a program where he was being treated for bipolar disorder as a condition of his parole. The mother became pregnant during this time period. Shortly thereafter, the father violated the terms of his parole and was re-sentenced to prison in December 2007. At the time of trial, he anticipated he would be released upon "maxing out" on his sentence in October 2012.

Following a series of appropriate proceedings in the family court, DYFS filed a complaint in July 2009 to terminate the parental rights of both parents. Psychological and bonding evaluations of all parties were completed in the next several months. The family court held a termination of parental rights trial on two dates in March and April 2010. The mother did not attend she was out of state near the end of another pregnancy but she was represented by counsel. The father was brought from prison to attend the trial, and he was also represented by appointed counsel.

Pursuant to a pretrial order, the court accepted in evidence sixty-two documentary exhibits offered by DYFS. The exhibits included investigative files, psychological and bonding evaluations, Department of Corrections records, and previous court orders. Most relevant to the issues now raised on appeal, the court admitted in evidence psychological and bonding evaluations conducted by Dr. Mark Singer, Ed.D.

During the father's evaluation at Northern State Prison, he told Dr. Singer he was then in administrative segregation because he "got into a fight . . . and the guy got hurt real bad." The father disclosed a history of substance abuse, and said that, when he was on parole, he was "drinking and getting high." He violated the reporting conditions of his parole to avoid testing positive for illegal and other prohibited substances.

Dr. Singer reached the following conclusions in his written report:

The test data further suggests that [the father] is a concrete individual who tends to be somewhat impulsive. He has difficulty dealing with ambiguity, has difficulty modulating affect, and is experiencing feelings of social inadequacy. These findings suggest [the father] likely has difficulty formulating and instituting appropriate plans and responding effectively and flexibly to changing circumstances, including the circumstances involved in caring for a child.

 

. . . .

 

As previously noted, while no bonding evaluation was yet completed, the psychological data does suggest that, within a reasonable degree of psychological certainty, [the father] lacks the emotional and physical resources needed to care for [the child] at this time. The data further suggest that, within a reasonable degree of psychological certainty, [the father], even if released in the near future from prison, will not likely become a viable parenting option in the foreseeable future. The data suggest that [the father] will likely continue to have difficulty creating stability in his own life and, as such, no[t] be capable of creating the stability and security that a child requires.

 

Subsequently, Dr. Singer conducted a bonding evaluation of the child with his father on a visit to the prison. Dr. Singer noted that when the father arrived, the child did not respond to him. The father walked over to the child, picked him up, and repeated "I'm Daddy," at which time the child began to whine. The father carried him around the room, and the child stopped whining for a short time, but the whining resumed and continued for most of the visit. Dr. Singer also observed that the child tended to avoid eye contact with his father, and, when the father kissed him, the child physically pushed him away. Dr. Singer concluded:

The data clearly suggest that [the child] has not come to view [the father] as being a significant figure in his life. In reality, [the father] is a source of anxiety for [the child]. Considering the case history and lack of contact between father and son, such a finding is not surprising.

 

. . . .

 

The child's behavior clearly indicates that [he] has not even established a comfortable level of familiarity with his father. The data suggest that, within a reasonable degree of psychological certainty, should [his] relationship with his father be severed, the child would not likely experience any significant and enduring harm. As [the child] has not come to view [the father] as being a significant figure in his life, should he lose this relationship, it is not anticipated that [the child] would experience a significant reaction to such a loss.

Dr. Singer conducted evaluations of the maternal grandmother and her live-in companion. The grandmother stated she was employed and currently resided with her companion, the child, and her twenty-year-old son. She disclosed prior involvement with DYFS both as a child and as a parent, but denied that her children were ever removed from her care. In addition, she stated she had completed foster parent training. Her male companion reported having one biological child, a son now aged twenty-five, who he was actively involved in raising. He further stated he was employed and had no history of arrest or criminal involvement.

The bonding evaluation of the child with the grandmother and her companion was conducted in September 2009 when the child was sixteen months old. Dr. Singer observed that the child engaged in play with both adults, and their interaction involved much smiling and laughter. When either adult called the child, he responded by turning his head. In addition, when both adults left the room, the child "crawled to the door and sulked." When they re-entered, the child "stood up and smiled."

In his report, Dr. Singer concluded:

[The child] has been with these individuals for the better part of his life. There is no evidence offered suggesting that the child has been at risk in this home. In addition, the psychological data does not suggest that either individual poses an imminent threat to this child. In addition, the data does suggest that these adults likely have the emotional resources needed to protect [the child] from his parents, should the need to do so arise.

 

. . . .

While [the child] is at an age where he may be transitioned from one home to another without creating significant and enduring harm, the data clearly suggests that this child has formed the foundation for a secure parent-child bond to his caregivers. He has not formed such a foundation with his mother. It is anticipated that, should [the child's] relationship with his caregivers continue, this foundation for a secure attachment will flourish and evolve into a healthy, secure parent-child bond. Once that occurs, severing such a bond is likely to cause significant and enduring harm.

 

In his testimony at the trial, Dr. Singer reiterated his findings and conclusions and also said that, barring evidence to the contrary having been developed, he would expect the child's relationship with the grandmother and her companion to have solidified in the months since his bonding evaluation.

Carolyn O'Neal, the DYFS case worker, testified regarding information contained in the DYFS reports. With respect to services DYFS had provided to the father, she testified monthly visits had been arranged with the child at the prison and a psychological evaluation was conducted for purposes of the trial. However, based on her experience with the Department of Corrections, DYFS could not provide other services recommended by Dr. Singer while the father was incarcerated, such as individual counseling or parenting classes. Also, substance abuse programs and employment training were controlled by the Department of Corrections and were not within the authority of DYFS to offer at this time. The case worker also testified that, according to prison records, the father assaulted another inmate or an officer, and, in a separate incident, he "got upset and he threw things in his cell and they placed him on a suicide watch."

The father did not testify at the trial, and his attorney did not offer any additional exhibits in evidence.

On May 7, 2010, Judge Nelson issued his written decision making findings of fact and concluding that DYFS had proven in accordance with the law that the parental rights of both parents should be terminated in favor of permanent placement of the child with his grandmother for adoption. A judgment of guardianship for DYFS was entered on the same date.

Under N.J.S.A. 30:4C-15.1a, parental rights may be terminated when:

(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 for 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 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.

The four subsections of the statute 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). The family court's inquiry is extremely fact-sensitive. M.M., supra, 189 N.J. at 280. DYFS bears the burden of proving the statutory criteria by clear and convincing evidence. G.L., supra, 191 N.J. at 606.

The father argues that the family court improperly based its finding as to the first subsection of the statute merely on the fact of his incarceration. He cites In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993), for its holding that incarceration alone is not sufficient as a matter of law to terminate parental rights. He also argues that the judge combined the first two statutory factors and did not find that each had been proven by clear and convincing evidence. In other words, he argues that the court used evidence of his current inability to eliminate the circumstances of his incarceration as proof of harm to the child when it is only relevant to the second statutory factor.

In his written opinion, Judge Nelson provided reasoning for his finding that the first statutory factor had been proven:

In regard to [the father], he has been incarcerated for virtually the entire length of his child's life. [The father] is not eligible for parole until the year 2012. While incarceration itself may not make someone unfit to parent or unable to provide a safe and stable home, the court finds it does so in this matter. It is telling to the court that [the father] was released from prison only to be re-arrested and returned to prison on a violation of parole. The parole violation was that [the father] avoided any contact or reporting to his parole officials as he did not want to test positive for illegal substances. Clearly, during this time of release, [the father] was using illegal substances.

 

Contrary to the father's argument, these findings show that the judge was relying as much on the father's conduct while he had been released from prison as on the fact of imprisonment itself. While that conduct occurred before the child's birth, it was evidence that the father had deprived the child of the care and nurture of a father. Together with Dr. Singer's conclusion that the father has "difficulty formulating and instituting appropriate plans . . . including the circumstances involved in caring for a child," the court's findings support a conclusion that the child's safety, health, or development will continue to be endangered by the parental relationship.

Our Supreme Court has held that "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. Although L.A.S., supra, 134 N.J. at 136-37, held that incarceration is not sufficient by itself, the Court recognized that "the effect of imprisonment, and the concomitant inability to carry out many regular and ordinary parental duties, can be deleterious to the emotional and psychological condition of children." Id. at 141. A parent's incarceration, therefore, is a relevant factor in determining whether to terminate the parental relationship. Id. at 136-37.

The father has been incarcerated since the child's birth and will not be released before the child is four-and-a-half years old. He has been unavailable as a parent and has not attended to the child's needs. The child's care has been left to others. Furthermore, Dr. Singer's bonding evaluation revealed that the father is a source of anxiety to the child. The monthly visits in prison have not produced a healthy relationship, in contrast to the child's relationship with his grandmother and her companion. All these findings were relevant to the first prong of the statute. The infant child's safety, health, and development are endangered by his relationship with his imprisoned father, who has continued to engage in violence while incarcerated. We find no error in the trial court's finding in that regard.

The father argues most pointedly that the evidence at trial did not prove clearly and convincingly that DYFS had satisfied the third subsection of the termination statute. He contends that DYFS did not make reasonable efforts to provide services to correct his deficiencies as a parent and also did not consider alternatives to termination of his parental rights, in particular a kinship legal guardianship by one of the two grandmothers rather than termination of parental rights followed by adoption.

The statute applicable to kinship legal guardianship, N.J.S.A. 3B:12A-6d, provides that the court shall appoint a caregiver as a kinship legal guardian if clear and convincing evidence demonstrates that:

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

 

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

 

(3) in cases in which the Division is involved with the child as provided in subsection a of [N.J.S.A. 30:4C-85], (a) the Division exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and

 

(4) awarding kinship legal guardianship is in the child's best interests.

 

[Emphasis added.]

 

Here, the trial court rejected this provision because the maternal grandmother had indicated her decision to adopt the child, thus negating the provision of the statute that makes it applicable only when "adoption of the child is neither feasible nor likely."

In New Jersey Division of Youth and Family Services v. P.P., 180 N.J. 494 (2004), the parents had been unable to care for their two children because of long-standing substance abuse histories and failure to comply with DYFS services. The trial court terminated their parental rights. The Supreme Court granted certification "to consider the standards for termination under N.J.S.A. 30:4C-15.1a in light of the placement option provided by the [Kinship Legal Guardianship] Act." Id. at 505. The Court ultimately held that:

[t]he plain language of the [Kinship Legal Guardianship] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption 'is neither feasible nor likely' and 'kinship legal guardianship is in the child's best interest.' Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1a(3).

 

 

[Id. at 512-13 (emphasis added) (internal citations omitted).]

The Court found no error in terminating both defendants' parental rights based on the evidence presented. Id. at 513.

Nevertheless, the Court noted the "unusual circumstances" presented in that case, including new information that the grandmother "has been wavering in her adoption commitment." Id. at 513-14. The Court held that on remand, if the defendant-parents remained unfit to parent, "the trial court should not consider kinship legal guardianship unless either (or both) of the grandparents decline to adopt." Id. at 514.

In this case, it appears that the father is attempting to use kinship legal guardianship "as a defense to termination of parental rights." Under P.P., if adoption is available, his argument fails.

The father argues that there was "insufficient evidence to determine that adoption was feasible or likely" because the "Fact Sheet" DYFS provided to the maternal grandmother to explain adoption and kinship legal guardianship contained inaccurate information and was unfairly biased in favor of adoption. For example, the Fact Sheet included a statement that "Adoption is the best permanent plan for a child because it provides the highest level of legal and emotional security."

Unlike in P.P., however, nothing in this case suggests that the maternal grandmother wavered in her commitment to adopt the child. Considering that the relationship between the father and the mother of the child was brief and ended soon after the pregnancy, that the grandmother is not related to the father, and that she has experienced difficulty under the present circumstances living with even the child's mother who is her own daughter, there is simply no evidence that the grandmother was deceived or cajoled into choosing adoption over kinship legal guardianship. The father may wish "to be involved in the child's life," but being involved is not the same as seeking to be a parent to the child. There is no evidence on this record that kinship legal guardianship is in the child's best interests, N.J.S.A. 3B:12A-6d(4), when adoption by the grandmother is feasible and likely.

With respect to counseling services while the father is incarcerated, the DYFS case worker testified regarding her experience in similar cases and stated that the Department of Corrections controls any services that may be provided. She testified that DYFS cannot assist the father at this time to attend recommended services such as individual counseling or parenting classes. The father has not presented any evidence to refute the case worker's testimony. It is unlikely that the Department of Corrections would approve special counseling services outside the prison setting for an inmate serving a sentence for a violent crime, and who has been violent while in custody. If some of the needed services are available in the prison setting, it is the father who must avail himself of those opportunities.

Finally, the father argues that he received ineffective assistance of counsel at the termination trial, and therefore, the judgment of guardianship should be vacated and the case remanded for a new trial.

In New Jersey Division of Youth and Family Services v. B.R., 192 N.J. 301, 307-09 (2007), the Court held that the two-part standard outlined for criminal cases in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), also applies in analyzing ineffective assistance of counsel claims for parental rights cases. The parent must demonstrate that counsel's performance was so deficient as to violate the parent's constitutional rights, and that the deficient performance prejudiced the parent. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This is a difficult standard to meet because "there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Echols, 199 N.J. 344, 358 (2009) (citing Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

To satisfy the second part of the Strickland test, the parent must show that "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

I

n this case, there is no showing of a reasonable probability that the result of the termination trial would have been different if counsel had objected more, or given a closing argument more specifically focused on the four parts of the termination statute. The father has not stated what exhibits admitted by the court should have been excluded, or what evidence should have been presented, through his testimony or another source. He has not stated how any alternative presentation by his attorney would have affected the trial court's findings of fact. Nor has he connected counsel's alleged deficiencies to the trial court's conclusions, other than those we have rejected on the merits. While another attorney may have argued more forcefully, the facts and the law ultimately supported the court's decision. A new trial is not warranted because of ineffective assistance of counsel.

Affirmed.