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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2500-11T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

R.J.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF A.J.,

Minor.

March 28, 2013

 

Submitted January 8, 2013 - Decided

 

Before Judges Alvarez and Waugh.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0044-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Erb Cashin, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

Defendant Roger2 appeals the December 12, 2011 order of the Family Part terminating parental rights in his daughter Amy, born in 2007, contending that plaintiff Division of Youth and Family Services (the Division) failed to prove the statutory best interests test. See N.J.S.A. 30:4C-15.1(a)(1) to (4). We affirm.

I

We glean the following from the record submitted on appeal. The Division's interest in the family commenced in 2005, when it received a referral that Joan, Amy's mother,3 was homeless and neglecting her first child, George, born in 2004. After confirming that Joan and George were living with her father, the Division closed the case. In March 2006, the Division received another referral regarding a family member who allegedly kicked at George's head. This report was not substantiated, and therefore the file on the family was closed again.

On April 11, 2007, yet another referral was received to the effect that Joan and Roger, while Joan was five months pregnant with Amy, had gotten into a physical confrontation during which Roger had punched Joan in the stomach, pulled her hair, and repeatedly slammed her head against a car window while threatening to kill her. Joan, who had visible bruising on her face, was taken to the hospital for treatment. As a result of this incident, on May 31, 2007, Roger entered a guilty plea to simple assault, N.J.S.A. 2C:12-1(a)(1), triggering a violation of the probation to which he had previously been sentenced for marijuana possession. The record does not provide details regarding this conviction, including the degree of the offense. Roger was required to attend an anger management program and his probationary term was extended six months. This time, the Division filed a Title 9 proceeding. See N.J.S.A. 9:6-8.21 to -8.73.

While the litigation was pending, Roger was ordered to participate in a psychological evaluation, a substance abuse program, and anger management counseling. On November 13, 2007, not even three months after Amy's birth, Roger was arrested for aggravated assault, N.J.S.A. 2C:12-1(b)(4), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The charges arose when Roger pointed a loaded handgun at Joan's head. The incident occurred after Roger attended several sessions in an anger management program. Consequently, Roger's visitation with Amy was temporarily suspended, and he was restrained from Joan's residence.

Roger was jailed from November 13, 2007, to February 29, 2008, while awaiting disposition on the charges. He commenced service of his eighteen-month sentence, on a guilty plea to aggravated assault, on October 31, 2008. The Division arranged for monthly visits with Amy while Roger was incarcerated. He was not released until sometime in December 2009.

About six weeks before he began to serve his term of imprisonment, on September 16, 2008, Roger reported that Joan assaulted him after arriving at his home to pick Amy up from a visit. Although the chronology is not entirely clear, he then had a disagreement on the street with a friend of Joan's, which prompted Joan to assault him again and an unknown man to approach and fire at Roger with a handgun. At that juncture, Joan's friend, the unknown shooter, and Joan, left with Amy.

As a result, on September 17, 2008, the Division conducted an emergency removal of George and Amy. The children were initially placed with a maternal aunt4 and then in a foster home. They were then removed from that home because of George's behavioral problems. On October 7, 2008, both children were placed with a second resource family. A third placement occurred early February of 2009 with the current resource family, who wishes to adopt both children.

A permanency order entered on August 11, 2009, granted a three-month extension of time before a guardianship complaint would be filed because Joan was working towards reunification. Joan ultimately surrendered her rights to the children, as did George's father.

On January 25, 2010, the trial court terminated the Title 9 litigation. In September 2010, Roger left his paternal grandmother and aunt's home. Social Services located an apartment for him, which he had to vacate by September 2011. In the interim, he completed a twelve-week parenting skills program, and participated in individual counseling. Roger expressed a desire to care for both George and Amy, even though he was not George's biological father.

Roger suggested several relative placements. The first one, Paula, had a criminal history and a history of drug use. There was an additional problem with placing the children with her: she gave conflicting information regarding the duration of her sobriety. The Division explored the possibility of placing the children with Roger's sister, Mary, who was not initially interested. Unfortunately, once she did express a willingness, it was ascertained that she lived in a two-bedroom home with her husband and two boys, and that there was not enough space for Amy to be placed with her. Mary was not willing to move to a larger home to accommodate Amy, nor, in any event, was she willing to take George.

Although Roger successfully completed a parenting skills program, he did not participate in individual counseling. Roger either cancelled or missed a number of sessions.

Roger was referred a second time to individual therapy with Mark Singer, Ed.D., a psychologist, in March 2011. He never attended any of these sessions, nor did he explain his failure to appear.

Therapeutic visits with both children were scheduled at the office of Barry Katz, Ph.D.; Roger missed two of five sessions.

Roger submitted to a hair follicle drug screening only after repeated orders requiring him to do so. The results were negative. He continued to be unemployed.

Peter N. DeNigris, Psy.D., testified in the guardianship trial regarding his 2010 and 2011 interviews and evaluations of Roger and his ultimate conclusion that Roger did not have the ability to parent. Roger's reported criminal history included possession of marijuana in 2004, the assaults in 2007 and 2008, and a second arrest for marijuana at some unknown time for drugs which he claimed were not his. DeNigris found the arrests established poor judgment in addition to "clear patterns of angry behavior and . . . violent behavior." He had ongoing concerns about Roger because of his propensity for explosive, violent behavior, and his inability to obtain employment or suitable housing.

Furthermore, Roger minimized the loss the children would experience if removed from their resource family; he did not think that the children would be "heartbroken" if removed. Roger's point of view was that the children would not be hurt because they knew their foster parents were not their biological parents.

DeNigris opined that Amy had no bond with her father, in contrast to the secure bond she had with the resource family. If that secure bond was broken, the child would experience severe and enduring harm. He observed that even though Roger was marginally appropriate in his interactions with Amy during the bonding evaluation, she experienced no distress when her father left the room. DeNigris explained that the strong connection between Amy and the resource family was only natural, the outcome of Roger's absences from Amy's life, since he was in prison for fourteen of her first twenty-eight months. DeNigris did not consider relative placements to be an option, since Amy was unfamiliar with those individuals as well. DeNigris did not anticipate that Amy would experience any loss or grief if contact with Roger was ended and parental rights terminated.

A second bonding evaluation with the resource family and Amy revealed that the healthy bond between them continued to blossom, and that placement of the children together, as a unit, was important to their emotional well-being. DeNigris considered adoption by the resource family to be in the children's best interests.

At trial, the Law Guardian proffered the testimony of Leslie J. Williams, Ph.D., a clinical psychologist. He too completed an evaluation of Roger, as well as bonding evaluations. His psychological testing of Roger was inconclusive, as Roger was minimizing and highly defensive in his responses. Williams agreed, however, that Roger would not be a fit parent due to his lack of impulse control, adequate housing, or employment. He too did not think that either child had a significant emotional bond with Roger.

During Williams's bonding evaluation between Roger and the children, the children's behavior became quite "loud and wild" and Roger could not control them. After approximately twenty-five minutes, Amy began to complain that she wanted to go back to school. She would not respond when Roger spoke to her, and repeatedly said she wanted to leave. George joined in, insisting that both children wanted to go. When Roger asked the children if they were trying "to make me mad," George said that Amy did not like him because Roger was not Amy's dad. In response, Roger said to George, "you better watch your mouth." George, then said, "what are you [going to] do beat me?" and Roger replied that he never beat him. Amy interjected that Roger was "not my dad."

When Roger left the room, the children calmed down slightly after Williams reminded them that they needed to behave. George told Williams that he and Amy wanted to live with their resource family. When asked who the man was who had just left the room, Amy called him "Daddy [Roger]," and when asked who he was in relation to her, she said she did not know but repeated that she wanted to go back to school. The children's behavior deteriorated even further, and Williams took them out to the Division worker where Roger was also waiting. The children ignored Roger, and when Williams suggested that they say goodbye to Roger, they did so quickly and left.

Williams also commented that despite completing parenting and anger management classes, Roger did not understand why he had been referred to individual counseling. He was unable "to effectively engage either child" during the bonding evaluation. Williams testified that "within a reasonable degree of psychological certainty, it would be in [George's] and [Amy's] best interests to remain" with the resource family and be adopted by them because they were only bonded with the resource family, and Roger was incapable of "providing adequate parenting."

The trial judge issued a sixty-nine-page written opinion ruling that the Division had met the statutory test by clear and convincing evidence.

II

Roger raises the following points on appeal:

POINT I

THE STATE FAILED TO MEET ITS BURDEN OF PROVING BY CLEAR AND CONVINCING EVIDENCE THE STANDARDS REQUIRED BY N.J.S.A. 30:4C-15.1(a)

 

A. THE STATE FAILED TO PROVE THAT [ROGER] ENDANGERED IN ANY WAY [AMY'S] SAFETY, HEALTH OR DEVELOPMENT. N.J.S.A. 30:4C-15.1(a)(1)

 

B. THE STATE DID NOT PROVE THAT [ROGER] COULD NOT BE CAPABLE OF PARENTING [AMY] IN THE FORESEEABLE FUTURE. N.J.S.A. 30:4C-15.1(a)(2)

 

C. DYFS DID NOT PROVE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO [ROGER]. N.J.S.A. 30:4C-15.1(a)(3)

 

D. THE STATE DID NOT PROVE THAT [AMY] WOULD NOT SUFFER MORE HARM THAN GOOD IN PERMANENTLY SEVERING HER RELATIONSHIP FROM HER FATHER. N.J.S.A. 30:4C-15.1(a)(4)

 

The scope of review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Those findings will not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation mark omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We will affirm factual findings "if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because of the trial judge's feel for the case and the opportunity to observe the witnesses as they testify. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard formulated in Cesare v. Cesare, 154 N.J. 394, 413 (1998), that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

If the challenge is to "'the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. America, Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Even in that instance, "unless the trial court's findings 'went so wide of the mark that a mistake must have been made[,]'" we defer. M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 379 (1995). We need not defer to the trial court's legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990).

Parents have a constitutionally protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Therefore the burden of proof is on the Division to establish its case by clear and convincing evidence. E.P., supra, 196 N.J. at 103; In re Guardianship of J.N.H., supra, 172 N.J. at 464; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").

The statute requires the Division to establish 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 division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

[N.J.S.A. 30:4C-15.1(a).]

 

These four factors are not independent of each other; rather, they are "interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).

III

Roger contends the trial court erred in finding that he endangered Amy's safety, health, or development. But as the trial judge observed, harm to a child is not limited to physical abuse or neglect. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986).

Roger was unavailable for fourteen of the first twenty-eight months of Amy's life, a crucial period, because he was incarcerated. Even after his release, despite his expressed desire to care for Amy, Roger was unable to obtain stable, adequate housing or employment.

If serious emotional and developmental injury would result from reunification, a court may give that circumstance great weight. Ibid. Indeed, "the psychological aspect of parenthood is more important in terms of the development of the child and [her] mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").

Most significantly, Amy has absolutely no psychological connection to Roger while enjoying a strong parental bond to her resource family. It is therefore clear that Amy has been harmed by her father's unavailability and would only be further harmed if returned to him and removed from the only stable home she has known. The potential risks to Amy are so great that an alternative to termination of parental rights cannot be considered. See A.W., supra, 103 N.J. at 605.

IV

Roger contends that the Division also failed to prove that he was incapable of parenting Amy in the foreseeable future. Under this prong of the test, a trial court must consider whether "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . [results in] the . . . neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm can be established by proofs that separating the child from his resource family parents could "cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). Obviously, there is overlap between the first and the second prong of the test. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

In this case, Roger's incarceration, the result of his pointing a handgun at the child's mother, is relevant, albeit not dispositive, on the issue of termination of parental rights. See In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37 (1993). Roger did not faithfully attend counseling, including missing some sessions of therapeutic visitation, arranged by the Division and supervised by Katz. He concedes his inability to provide safe housing and his lack of employment, and has a criminal history, including involvement with drugs. It is telling that over the course of two years he was unable to improve his circumstances, knowing what hung in the balance. We therefore agree with the trial judge that Roger is incapable now or in the foreseeable future to safely and properly parent.

Furthermore, there is, as the trial judge said, no indication that Roger has overcome the potential jeopardy to others posed by his temper. The nature of his conduct towards Joan, including striking her while she was five months pregnant, as well as the later threat with the firearm, establishes a propensity towards violent behavior which itself jeopardizes the welfare of the children. The Division, by clear and convincing evidence, established the requisite proofs for the second prong of the statutory test.

V

Roger contends the judge erred in finding the Division satisfied the third prong, asserting that it did not make reasonable efforts to provide services. He also claims that the Division did not comply with its statutory obligation to explore kinship legal guardianship (KLG) with Mary. Clearly the Division must extend services to assist the parent in correcting the circumstances that necessitated removal. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. Reasonable efforts were made in this case.

Roger was referred to and completed multiple psychological evaluations, including anger management counseling. He was provided with visitation with Amy even while incarcerated. When not in custody, he was extended supervised visitation. Although it is certainly true that Roger's visitation was limited and supervised, it was scheduled not just at the Division office but at Amy's daycare, a more natural setting. He was referred to substance abuse treatment, parenting skills programs, individual counseling, and anger management. Hence the Division did engage in reasonable efforts to provide services. That Roger was unable to benefit from the services does not mean that the services were inadequate.

At trial, Mary testified that she never received a rule-out letter. Even if true, the fact remained that she could not provide a home with sufficient space for her own two sons and Amy, and was unwilling to offer a home to George. George and Amy's continued life together as a family unit is important to Amy's emotional stability.

In any event, the issue is made moot by the harm that would result from removing the child from her foster family. That harm is the same whether she was to be placed with a relative or with her father. As the trial judge noted, KLG is only appropriate when adoption is "neither feasible nor likely" and a "kinship legal guardian is in the child's best interest." P.P., supra, 180 N.J. at 512-13 (internal quotations omitted). He concluded it was not appropriate in this case. We agree.

VI

Lastly, Roger asserts the trial court erred in finding that termination of parental rights would not do more harm than good. He proffers that the trial court gave too much significance to the bonding evidence in this case. The bonding evaluations demonstrated the absence of connection between father and daughter, and a strong healthy parental bond between daughter and potential adoptive parents. That the court heavily relied upon the bonding evaluations in reaching its decision was not error.

Roger also contends that his unemployment and lack of adequate housing was weighed too heavily by the trial court; that the trial court viewed the resource family as "better" than he. That is not a fair characterization of the record. Roger's unemployment and lack of appropriate housing means he was unable to offer a safe and stable home to the children, and was therefore properly taken into account by the trial court.

As always, the question is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. In this case, the answer is clear. Amy cannot be returned to her natural father's home without substantial harm to her health and safety. See N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The trial judge did not focus exclusively on the strong bond with the foster parents to justify termination of parental rights. See K.L.F., supra, 129 N.J. at 44-45; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

The experts testified that termination of parental rights likely will not do more harm than good not only because Amy would suffer psychological and emotional harm if removed from the resource family, but because Roger is not a significant figure in his daughter's life, and to date has been unable to alter his lifestyle so as to provide a safe, nurturing home. We therefore agree that in balancing the two relationships, termination of parental rights is the choice which will cause the child the lesser harm than the permanent disruption of her relationship with her foster parents. K.H.O., supra, 161 N.J. at 355.

Affirmed.

1 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 We use pseudonyms to refer to defendant, children, and individuals involved in this case for clarity and to preserve anonymity.

3 Joan does not appeal from her voluntary surrender of Amy.

4 The Division's report describes the individual as a paternal aunt, the briefs as a maternal aunt. The precise relationship is not relevant to the issues decided on this appeal.