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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1247-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF I.D.,

Minor.

_______________________________

November 2, 2012

Submitted October 10, 2012 - Decided

Before Judges Reisner and Harris.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-63-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Jared I. Mancinelli, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Michael A. Toya, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.D. (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant M.D. appeals from a September 26, 2011 order terminating his parental rights to his daughter, I.D. For the reasons that follow, we affirm.

I

We begin with a brief procedural history. I.D. was born in July 2007. The New Jersey Division of Youth and Family Services (Division)1 took custody of the child in August 2009, because her mother, J.Y., was using heroin and her father, M.D., who was not living with J.Y. and I.D., had a significant history of criminal activity and violence. While the case was pending, M.D. was arrested multiple times. He also delayed or refused to cooperate with services the Division offered.

As of November 4, 2010, M.D. had completed parenting classes, and was seeking expanded visitation with the child. However, at the February 24, 2011 case management conference, counsel reported to the court that M.D. was in jail, having been incarcerated for violating a domestic violence final restraining order. A permanency hearing was held on June 23, 2011. At that point, M.D s attorney reported to the court that he had been unable to contact his client despite his best efforts, and there were outstanding warrants against M.D. relating to additional criminal matters. Consequently, the defense had been unable to schedule a psychological expert examination of M.D. The court approved the Division's goal of seeking to terminate parental rights.

The guardianship trial began on September 12, 2011. At the beginning of the trial, J.Y. made an identified surrender of her parental rights in favor of her father and his fiancée, J.R., who had been caring for the child since August 2009. The case then proceeded against M.D., who was incarcerated but was permitted to attend the trial.2 The Division attorney reported that the State's expert had evaluated M.D. in jail, but "did not do a bonding [evaluation] for obvious reasons." M.D.'s counsel did not object to the State's failure to bring the child to the jail in order to do a bonding evaluation with the incarcerated defendant.

At the trial, the Division introduced its case records in evidence through the records custodian, and then presented testimony from Intake Worker Alexis Olivo. She recounted that I.D. first came to the agency's attention in April 2009, when M.D., who was living separately from the child and her mother, reported that during a visit with the child, he noticed that she had burns on her feet. At that point in time, M.D. and J.Y. were involved in custody litigation over the child in the Family Part. The Division's investigation revealed that in February 2009, the child accidentally burned her feet while walking over a heating grate at a relative's house, M.D. had known about the burns since February, and his allegations of child abuse or neglect were unfounded.

The Division received a second referral on July 27, 2009, when an anonymous caller reported that one of J.Y.'s boyfriends had been arrested for heroin possession, J.Y. appeared to be under the influence of drugs when she was with the child, and drug dealing was taking place in her apartment. As a result of the Division's investigation, the child was removed from J.Y.'s custody on August 3, 2009, after J.Y. tested positive for heroin. During the investigation, Olivo tried repeatedly to contact M.D. but he did not return her phone calls. She was finally able to reach him on August 3, 2009.

M.D. expressed an interest in caring for the child, but Olivo explained to him that in light of his criminal record, including drug charges and domestic violence, the agency needed to perform a background check before placing the child with him. Olivo testified that, as a result of the April 2009 investigation, she learned that during the custody litigation, the court ordered M.D. to complete anger management classes and to undergo a psychological evaluation and a home assessment. During the July 2009 investigation, she learned that M.D. had not yet completed those requirements. The Division also wanted M.D. to undergo a substance abuse evaluation, in light of his criminal history.

The Division next presented expert testimony from a psychologist, Dr. Elizabeth Smith, who conducted an evaluation of M.D. at the Middlesex County Jail.3 Based on that evaluation she concluded that M.D. was "not able to safely parent" the child. She based her opinion in part on his long history of violent behavior and low impulse control, dating back to at least the fourth grade. She opined that

[h]is antisocial behavior and explosive temper . . . across many situations with peers, with authority, and particularly with partners because he also has a history of domestic violence with partners. That would put this child at risk because his lifestyle is chaotic and unpredictable. He could expose her to antisocial behavior, to people . . . involved in criminal activities.

Most concerning to me was his temper and the explosive nature of it and his having assaulted so many different people in different contexts in his life . . . including domestic partners. And of course we know that children who are raised in an environment of family violence are much higher risk to be physically abused and also have very deep emotional scars from being raised in such an unpredictable and terrifying environment.

Dr. Smith acknowledged that M.D had completed an anger management course, but testified that this would not alleviate her concerns in light of M.D.'s long history of unsuccessful treatment to address his violent temper. She cited as an example his 2009 arrest for domestic violence and assaulting a police officer, and his recent history of domestic violence. She opined it was unlikely that "a short-term anger management program" would solve the problem "particularly when I was interviewing him and he was incarcerated again." She also concluded that during the interview, M.D. was not "being candid" and attempted to minimize the extent of his problems. Based on M.D.'s self-reported binge drinking, Dr. Smith also opined that he suffered from untreated alcoholism. She noted that the 2009 police report indicated that M.D. was intoxicated at the time he was arrested.

M.D. explained to Dr. Smith that he visited the child regularly, "except when he was incarcerated." She testified that, whatever the reason for a parent's absence, failure to visit a child would affect the child's attachment to that parent. Noting that the child had been in foster care since age two and was then four years old, Dr. Smith noted the disruptive impact of M.D.'s extended absence from her life:

You know the child is concerned with her day to day life with the people who are taking care of her now, with who is tucking her into bed at night, who is feeding her, who's playing with her, who's reading to her. And while she still may maintain some level of familiarity and remember who the parent is or remember a daddy, you know, it doesn't bode well that there's any kind of strong attachment or relationship there.

On cross-examination, Dr. Smith confirmed that, in light of M.D.'s inconsistent visitation with I.D., "we're not looking at a child who has a secure deep attachment to her father, simply because . . . it's not really possible with a child of her age who's been living somewhere else for so long."

Based on her interview as well as psychological testing, Dr. Smith concluded that M.D. has "an antisocial personality" and poor impulse control. She stated, "[h]e just loses control and does whatever he wants. He feels entitled to do that." She acknowledged that M.D. cared about I.D. very much and genuinely wanted to act as her parent, but he had no "insight or understanding into his own difficulties and into his own impulse control problems. So he doesn't realize how that kind of behavior might impact on her." She opined that M.D. would need to be "in some kind of treatment for possibly years" before he would be able to safely act as a parent. She held out no "hope of him changing appreciably in a manner that would be timely to [I.D.'s] permanency needs."

Dr. Smith also testified about her bonding evaluation of the child with her maternal grandfather and his fiancée. She found that the child had a "very warm and secure attachment to them." She opined that they were her "psychological parents" and that if this bond were severed the child would "suffer . . . a great sense of loss and trauma." She testified that M.D. would not be able to mitigate that harm to the child. On the other hand, the child would not suffer any similar sense of loss or trauma if M.D.'s parental rights were terminated. Dr. Smith also emphasized, on cross-examination, that "this child above and beyond everything else requires permanency."

Although she did not do a bonding evaluation with M.D. and the child, Dr. Smith testified, based on the report of their last visit together, that the father and child did not have a bond. The child behaved somewhat indifferently to M.D., and instead of understanding that her reaction was a result of their past separation, M.D. became angry and told the child that "if you don't play with me I'm leaving." According to Dr. Smith, that was a "grossly inappropriate" remark to make to a four year old:

Again . . . this kind of reflects his very immature emotional development. He can't really see anything from anything else but his [perspective]. He's mad at the child because she's not loving him, because she's not jumping into his lap and doing what he wants her to do. And he doesn't know how to deal with that, so he gets angry.

M.D. did not present any witnesses at the trial.

II

On September 26, 2011, Judge Mary Gibbons Whipple issued a comprehensive, thirty-page written opinion finding that termination of M.D.'s parental rights was in the child's best interests, under the four-pronged standard set forth in N.J.S.A. 30:4C-15.1a. Initially, the judge noted that M.D. and J.Y. had been involved with the Division since their own childhoods. The Division's records reflected M.D.'s long history of violence, including an assault on his younger sister when he was a minor, a later assault on his grandmother, domestic violence with paramours, and his history of drug dealing and alcohol abuse.

The judge cited to a December 2010 incident in which M.D. and several accomplices attacked his former girlfriend's car "with a bat, crow bar, and their hands" and "attempted to stab her boyfriend." M.D. also was accused of repeatedly calling and sending text messages to the girlfriend threatening to kill her. In another incident, M.D. "assaulted two acquaintances, including one charge of aggravated assault, when he struck the victim on the back of the head with a brick."4 Finally, "[m]ost recently, on April 4, 2011, M.D. was arrested and charged with assault after police responded to a report of . . . domestic violence." M.D.'s girlfriend alleged that he grabbed her by the neck, pushed her to the ground, and drove off in her car without her permission.

The judge noted M.D.'s persistent refusal to engage in substance abuse treatment, individual therapy, and a host of other services the Division attempted to provide. She further considered that he frequently missed visits with I.D., having "failed to attend approximately sixteen out of forty scheduled visits."

With respect to prong one, the court found clear and convincing evidence that an accumulation of harms, which were likely to continue, precluded M.D. from providing I.D. with a safe and stable home. Initially, the court found that when I.D. was removed from J.Y. s home, the Division could not safely place her with M.D., because he had not yet complied with the prior court-ordered evaluation and home inspection. Thereafter, M.D. still could not provide a safe home for I.D. because he did not complete the parenting skills and anger management courses until a year after I.D.'s removal; he failed to submit to drug screens or cooperate with additional required services; he had a recent arrest; and the home study eventually revealed that his home was not suitable.

Additionally, crediting Dr. Smith's evaluation, Judge Whipple found that M.D.'s long pattern of violence and domestic abuse, and his inability to change that pattern of conduct, posed a risk of future harm to I.D. Citing New Jersey Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228 (App. Div. 2010), the judge found that "M.D. . . . failed to sustain an ongoing relationship with his daughter prior to his present incarceration" as well as during his imprisonment. She found that the harm to the child could not be remedied in the foreseeable future because M.D. was still in jail.

Second, the court found clear and convincing evidence that M.D. was unwilling or unable to eliminate the harm to I.D. The court concluded that permanency was in the child s best interests, and delaying permanent placement would only increase the harm to I.D. Further, the court found that separating I.D. from her foster family would cause emotional and psychological harm. In particular, the court focused on the fact that although M.D. "completed some services, he did not achieve adequate progress to parent I.D. successfully," noting his repeated and current incarceration. The court also credited Dr. Smith's opinion that M.D. needed long-term treatment, was in denial concerning his shortcomings as a parent, and had an unrealistic belief that he could easily be reunited with I.D.

Third, the court found by clear and convincing evidence that the Division made reasonable efforts in providing services to M.D., over an extended period of time. The court referred to the services including "consultation with the parent, developing a plan for reunification, facilitating visitation, and providing M.D. with both substance and psychological evaluations." Additionally, the court found that the Division explored reasonable alternatives to placement, and that the Division appropriately placed I.D. with her grandfather and his fiancé, who were licensed foster parents and were committed to adopting I.D.

Finally, the court found that the Division proved clearly and convincingly that termination of M.D.'s parental rights would not do more harm than good. The court noted that M.D. did not present any evidence that termination would harm I.D. The court accepted Dr. Smith's testimony that I.D. had a healthy attachment to her foster parents, who were equipped to mitigate the minimal harm that would result from termination of M.D.'s parental rights.

III

In reviewing Judge Whipple's decision, we do not write on a clean slate. Ordinarily, we defer to a trial judge's factual determinations unless those findings "'went so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J.261, 279 (2007) (citation omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1983) (citation omitted). And we owe special deference to the judge's credibility determinations. Cesare v. Cesare, 154 N.J.394, 411-13 (1998). In this case, we find that Judge Whipple's factual findings are supported by substantial credible evidence and her legal conclusions are unassailable.

When balancing a parent's constitutional rights and a child's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

 
(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.

In their application, the four factors above "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

On this appeal, M.D. contends that he did not abuse or neglect I.D. and there was no evidence that he posed a danger to her, even if he was violent toward others. He also argues that the child's bond with her maternal grandfather and his fiancée did not justify terminating his parental rights under the second prong of the best interests test. And he contends that the fourth prong was not satisfied because he had some previous positive interactions with his child, he can resume his relationship with her after his incarceration ends, and the court should not have terminated his parental rights without an expert evaluation of the child's bond with him. Finally, he contends that his trial counsel was ineffective for failing to insist on a bonding evaluation and failing to highlight for the court the positive interactions M.D. had during several visits with I.D. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 304 (2007).

We find no merit in any of these arguments which, for the most part, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Whipple's thorough opinion. We add the following comments.

During the years that I.D. was in foster care, M.D. repeatedly failed to engage in those services that might have enabled him to obtain custody of the child. Moreover, he has been repeatedly incarcerated due to violent conduct, raising a substantial question whether he will be able to stay out of jail for any significant period after being released from his current incarceration. He also failed to regularly visit with the child when he was not incarcerated. Meanwhile, the child has bonded with her maternal grandfather and his fiancée, who plan to adopt her. Even if M.D. sincerely wishes to act as the child's parent, he is not capable of doing so now, and she cannot wait any longer for a permanent home.

We agree with M.D. that, ordinarily, a court should not make a decision on termination of parental rights without requiring a bonding evaluation between the parent and the child. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). However, for three interrelated reasons, we find that in the unusual circumstances of this case a bonding evaluation was not required. First, the child had been in foster care for an extended period of time and her need for permanency was paramount. Second, it was not possible to conduct a bonding evaluation because M.D. was incarcerated. Where a parent's own conduct makes it impossible to conduct a bonding evaluation, or where a parent refuses to cooperate with an evaluation, the child's need for a permanent placement cannot be held hostage to that requirement. Third, as Dr. Smith testified, M.D. had so little sustained contact with this young child that there was virtually no possibility that the two could have formed a parent-child bond.

Because a bonding evaluation with M.D. was not required, we also reject M.D.'s claim that his trial counsel was ineffective for failing to insist on such an evaluation. Indeed, on this record, we perceive nothing that M.D.'s trial attorney could have done to change the outcome of the guardianship trial. We find no basis to disturb Judge Whipple's well-reasoned decision terminating M.D.'s parental rights.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Defendant was incarcerated in the Middlesex County Jail but was apparently transferred temporarily to the Morris County Jail so that he could attend the trial, which was held in Morris County.

3 Dr. Smith explained that she did not also conduct a bonding evaluation between M.D. and the child, because he was incarcerated and because he had not seen the child "for some time."

4 In his interview with Dr. Smith, M.D. admitted hitting the victim with a brick.