NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.D.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5983-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

M.D.P.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.P.P.L.,

A Minor.

__________________________________

April 13, 2011

Submitted: March 9, 2011 - Decided:

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-173-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for J.P.P.L., a minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

J.P.P.L. is the daughter of J.L. and defendant M.D.P. Born on February 12, 2008, she has been in the custody and care of her maternal great-aunt, D.H., since she was released from the hospital. J.L. executed an identified surrender of her parental rights in furtherance of the plan for adoption by the maternal great-aunt. M.D.P. declined to surrender his parental rights because he wanted his daughter to know he fought for her. Two weeks after her birth, M.D.P. was incarcerated on State charges. He remains incarcerated but expects to be released on parole on June 25, 2011.

M.D.P. argues that the record adduced by the State does not establish by clear and convincing evidence that he abandoned his child or any of the four statutory prongs, N.J.S.A. 30:4C-15.1a(1)-(4), required to terminate his parental rights. He insists that he has not harmed his child, the Division of Youth and Family Services (DYFS) failed to make reasonable efforts to provide services to him to foster reunification, and the record does not establish that termination of his parental rights will not do more harm than good. DYFS and the Law Guardian respond that sufficient competent evidence was adduced to allow the trial judge to find, as she did, that clear and convincing evidence supports the order terminating M.D.P.'s parental rights. We affirm.

At the time of J.P.P.L.'s birth, M.D.P. was unemployed, charged with robbery, and lived with J.L., the mother of J.P.P.L., at his grandmother's house. On February 14, two days after the child's birth, M.D.P. arrived at the hospital to pick up mother and child. On his arrival, M.D.P. learned that DYFS had intervened due to the termination of J.L.'s parental rights to her older daughter. J.L. had not informed M.D.P. of DYFS's interest and he apparently had not told J.L. of his plan to have his mother and sister care for J.P.P.L. On discharge, the child was placed in the care of J.L.'s aunt, who was in the course of adopting J.L.'s older daughter. J.P.P.L. has been in the maternal aunt's care since that time.

M.D.P. has been incarcerated since February 26, 2008, except for a six-day period in May 2008. He has seen his daughter once in a visit at the courthouse. His plan for the custody and care of J.P.P.L. is placement with his mother and sister. Yet following a mediation session in December 2009, M.D.P.'s mother and sister entered an agreement with the maternal great-aunt for visitation with the paternal family recognizing that the maternal great-aunt would adopt J.P.P.L., when and if M.D.P.'s parental rights were terminated.

In her opinion, the trial judge found that M.D.P. had been unable to care for his daughter due to his continuous incarceration for multiple criminal acts. She found no evidence that he ever assumed any parental responsibility for his daughter's care, never supported her financially or emotionally, and never formulated a feasible, realistic plan for her care. The judge further found that M.D.P.'s absence from his daughter's life had prevented any emotional relationship to form with his daughter and had allowed a secure relationship to develop between his daughter and her maternal great-aunt with whom she has lived her entire life. The judge found that this abdication of parental responsibility and its emotional consequences harmed the child. She also found that M.D.P.'s continued incarceration prevented him from alleviating the harm caused to his child.

The judge then found that DYFS provided reasonable services to M.D.P. under the circumstances of the case. The judge noted that she denied an application for visitation in the county jail or prison due to the age of the child. J.P.P.L. was only weeks old when M.D.P. was incarcerated. The judge did allow one visit between J.P.P.L. and her father in the courthouse.

The judge also found that DYFS investigated the two persons M.D.P. identified as caretakers for his daughter. His sister was initially ruled out as a caretaker because her apartment was too small. Eventually, she withdrew her application to care for J.P.P.L. but did enter a mediated agreement with J.P.P.L.'s caretaker to allow visits with M.D.P.'s mother and herself.

Finally, the judge found that termination of M.D.P.'s parental rights will not do more harm than good to the child. The judge found that the child is "happy and confident" in her great-aunt's care. J.P.P.L. refers to her as "mommy" and considers her great-aunt as her psychological parent. Although the judge considered the bonding evaluation of the relationship between the child and her great-aunt "perfunctory," she also considered the conclusion consistent with a placement in existence since the child was three days old. Furthermore, the child and her father have no emotional relationship due to his continuous separation from his daughter.

Termination of parental rights by the State must balance the constitutionally protected right of a parent to maintain a relationship with their child and the responsibility of the State to protect the welfare of the child. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). The standard for termination is, therefore, strict. Ibid. The State must "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." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (citing Santosky v. Kramer, 455 U.S. 745, 768, 102 S. Ct. 1388, 1402, 71 L. Ed. 2d 599, 616-17 (1982)).

This standard is met by satisfying the statutory "best interests of the child" standard. N.J.S.A. 30:4C-15.1a. This four-prong test is as follows:

(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) [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 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.]

Each element or prong is not a watertight compartment. Rather, the elements relate to and overlap with one another. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999); In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

This court will not disturb the findings of fact of the trial court judge "unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In addition, we must recognize the expertise of family division judges and defer to their expertise. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

As a threshold matter, we reject M.D.P.'s argument that the judge approached this case as a claim based on abandonment. To be sure, the judge found that M.D.P. failed to provide financial and emotional support to his child, but that finding and the finding that he was unwilling or unable to cure the harm were made in the course of evaluating the evidence submitted by DYFS in accordance with the statutory best interests of the child standard.

We are also satisfied that the findings that M.D.P. harmed his child by his continuous absence due to incarceration and that his continuous incarceration prevented him from curing or ameliorating that harm are well-supported by the record. M.D.P. argues that the trial judge placed undue emphasis on his incarceration. We disagree.

Incarceration of a parent is a relevant and material factor in any decision to terminate parental rights, whether the issue is parental abandonment or parental unfitness. In re L.A.S., 134 N.J. 127, 143 (1993). This fact may not be dispositive as incarceration may not be inimical to the parental relationship; yet incarceration is a relevant factor because it directly affects the capability of a parent to properly care for a child. Id. at 136-37.

In L.A.S., the Court noted that the assessment of the impact of incarceration on the parent-child relationship must be informed by the nature and extent of contact between parent and child before incarceration, the efforts made by the parent to maintain contact with his child during incarceration, and the nature and extent of the efforts to provide for the child's well-being during incarceration. Id. at 138. The nature of the relationship between father and child before incarceration is an important consideration because "a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered." Id. at 139. In addition, the nature of the parent's offense must also be considered, as incarceration for violent offenses, especially against the child or a family member, may not counsel in favor of maintaining the parent-child relationship. Id. at 141.

Here, M.D.P. did not commit an offense against J.L. or the child. His extended incarceration, however, has prevented development of any relationship with his daughter. M.D.P. cannot undo the harm his absence has caused. His daughter has no emotional relationship with him, and his absence from her life has caused the formation of an enduring emotional bond with her maternal great-aunt.

M.D.P. argues that he would have been able to discharge some of his parental responsibilities if DYFS had facilitated visits with J.P.P.L. and had pursued his identified relatives. We disagree.

As to his identified relatives, his mother and sister were "ruled out" as placement resources. Neither appealed that disposition. Moreover, after mediation, both agreed to the plan to allow contact with the paternal family but conceded that the maternal great-aunt would be the permanent caretaker for J.P.P.L.

M.D.P.'s contention that DYFS failed to provide reasonable services to him while incarcerated also fails. In New Jersey Division of Youth and Family Services v. T.S., 417 N.J. Super. 228 (App. Div. 2010), we recently addressed a challenge by an incarcerated father that the lack of services extended to him while incarcerated by DYFS precludes termination of his parental rights. Id. at 232-32, 241. In T.S., the father was incarcerated from the time his eight-year-old daughter was removed from the custody and care of her mother through the trial. Id. at 232. He was serving a five-year term of imprisonment subject to a three-year term of parole ineligibility following his guilty plea to distribution of a controlled dangerous substance in a school zone. Id. at 235. We recognized that the provision of services to the father was impeded by his incarceration, but also held that the absence of any relationship between the father and his daughter before his incarceration obviated the need to provide services. Id. at 242. We also held that the order terminating the father's parental rights was supported by the failure of the father to ever express a desire to care for his child or to offer "even the possibility of [his] availability and ability to safely provide for [his daughter's] care in the near future." Id. at 243.

As in T.S., there was no emotional relationship to maintain between M.D.P. and J.P.P.L. M.D.P. has been incarcerated since J.P.P.L. was two weeks old. He has seen her once. Furthermore, his plan for care of his child never included himself as a caretaker and the persons he identified have withdrawn their interest in caretaking and agreed to a visitation plan well short of a caretaker role.

Finally, M.D.P. argues that the evidence simply does not allow a finding that termination of his parental rights will not do more harm than good. He contends that the judge erred by allowing DYFS to reopen the evidence to expand the record after the judge remarked that the evidence on this aspect of the case was weak. Although unorthodox, M.D.P. had the same opportunity as DYFS to develop and expand the record as to this point.

At the conclusion of the trial, the judge advised counsel that the evidence submitted did not address the final prong of the analysis. The judge allowed DYFS additional time to supplement the record. During that period, DYFS obtained a bonding evaluation of the child and her caretaker, the maternal great-aunt. M.D.P.'s counsel utilized this period to obtain a psychological evaluation of him. When the hearing resumed, the judge considered the bonding evaluation; defendant submitted no further evidence.

We have counseled trial judges in the past to respect their role as fact-finders and not usurp the function delegated to DYFS, if the evidence submitted by the State does not satisfy the evidentiary standard. J.T., supra, 269 N.J. Super. at 186-87. In J.T., DYFS pursued termination of parental rights of biological parents who had overcome the problems that caused the removal of their child. Id. at 186. In that context, we held that the judge should have dismissed the case when he found that DYFS failed to establish its case by clear and convincing evidence. Ibid.

J.T., however, is distinguishable. M.D.P. submitted no evidence that he was in a position to care for his child or that others were ready, willing, and able to care for J.P.P.L. The most M.D.P. offered is an expectation that he would be released from prison sooner rather than later. Still, M.D.P. offered no plan to care for his daughter. In short, this case does not concern a rehabilitated parent with an emotional relationship with their child.

In addition, both parties were in a position to supplement the record. M.D.P. cannot seriously argue that he did not anticipate the results of the bonding evaluation. He has no emotional relationship with his daughter. The bonding evaluation simply confirmed what any reasonable person would expect; i.e., that J.P.P.L. and her maternal great-aunt have developed a loving and nurturing relationship. Given the facts of this case, we do not find that the trial judge overstepped her role in continuing the trial for a brief period to allow both parties to supplement the evidence.