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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3497-11T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

R.M.D.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.A.D.,

Minor.

___________________________________

April 3, 2013

Submitted March 6, 2013 - Decided

Before Judges Grall, Koblitz and Accurso.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Burlington County, Docket No. FG-03-34-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa J. Godfrey, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.A.D. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.M.D. appeals from a judgment terminating his parental rights to his daughter, K.A.D. R.M.D. contends that the Division of Youth and Family Services (Division) failed to establish that it made reasonable efforts to assist him and to prove that termination of his parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(3)-(4). R.M.D. does not claim the trial court erred in determining that K.A.D. is endangered by her parental relationship with R.M.D. or in concluding that R.M.D. is unwilling or unable to eliminate the harm without delaying her permanent placement. N.J.S.A. 30:4C-15.1(a)(1)-(2). The Division and K.A.D.'s Law Guardian urge us to affirm the judgment. Substantially for the reasons stated by Judge Schlosser in a decision he delivered on January 26, 2012, we reject defendant's arguments.

K.A.D. was born in October 2007, but her family did not come to the attention of the Division until July 2009, when K.M., K.A.D.'s mother, gave birth to a baby girl who tested positive for marijuana. Although the baby was subsequently determined to be the child of another man, R.M.D. was with K.M. in the hospital when a caseworker visited K.M. At that time, R.M.D. admitted knowing K.M. was using marijuana during her pregnancy and using marijuana on occasion himself, never in the presence of K.A.D.

Prior to the new baby's birth, K.A.D., K.M. and R.M.D. had been living with K.M.'s parents, but when the baby was born R.M.D. was living with his aunt. K.M. and R.M.D. both met with caseworkers from the Division in the hospital. K.M. told the caseworkers that she planned to have the children live with her, her sister and her parents. R.M.D., who was then living with his aunt, did not offer a different plan. The caseworker explained that the Division would need to inspect the maternal grandparents' home before the baby was released, and that R.M.D. and K.M. might be required to submit to drug abuse evaluations and drug screens. The parents said "ok" and indicated that they had no questions. R.M.D. was not present when caseworkers went to the maternal grandparents' home two days later, and he was not present when the caseworker reviewed the case plan with K.M. and her parents.

By August 4, 2009, K.M. had submitted to an evaluation for substance abuse and been placed in and commenced drug treatment. In contrast, R.M.D. had rescheduled two appointments for his evaluation and another one was scheduled for the first week in August. When he appeared for that appointment, R.M.D. reported last using marijuana in November 2008, but a drug screen done that day was positive for marijuana. The Division referred R.M.D. for outpatient treatment, but he did not complete the program. On August 14, 2009, R.M.D. returned a caseworker's call and told her that he was in Georgia and would call to make an appointment for treatment when he returned. On September 9, 2009, the Division closed the case it had opened to provide services for R.M.D. because he had not contacted the Division. A caseworker's notes from September 28, 2009 indicate that R.M.D. was seeing K.A.D. once a week at that time but was not paying child support. Notes from November 20, 2009 report that the maternal grandfather was not permitting R.M.D. to visit because he was not cooperating with the Division and being tested for drugs.

The Division did not file a complaint and order to show cause to obtain custody of the children until the maternal grandparents reported that K.M. left their home without her children on December 12, 2009. The caseworker had difficulty locating K.M. but found her living in a motel on December 22. K.M. told the caseworker she left because she did not like living with her parents but thought her children would be better off with them.

On the return date of the order to show cause, the court granted the Division's application for custody and approved placement of the children with their maternal grandparents. Although a caseworker placed a phone call and left a message for R.M.D. at the number K.M. gave for R.M.D., he did not return the call or appear.

R.M.D. was reached in early May 2010. He said he was living in Florida but would return to New Jersey by May 12. A caseworker met with R.M.D. in his aunt's home in New Jersey prior to a May 18 court hearing, and R.M.D. appeared for that hearing. The court ordered R.M.D. to complete substance abuse and psychological evaluations, but R.M.D. missed three appointments scheduled in July 2010. He appeared for an evaluation on August 6, and agreed to return on August 9 to complete it, but did not keep that appointment. R.M.D. failed to appear for court hearings on July 27, October 5 and November 12, 2010. By November 12, the Division lost touch with R.M.D. He simply did not respond to communications caseworkers directed to his last known address and phone number.

In November 2010, K.M. gave birth to a third child, a baby boy. Before he was born, K.M.'s parents agreed to care for that child as well as K.A.D. and her half-sister. Indeed, the maternal grandparents told the caseworker that they wanted to adopt all three of their daughter's children if K.M. remained unable to care for them. The caseworker had explained the option of Kinship Legal Guardianship, but the grandparents told the caseworker they had decided against it and preferred to adopt. On January 24, 2011, the court approved the Division's plan to proceed with termination of parental rights and adoption.

R.M.D. was located again in April 2011. After scheduling and missing multiple appointments, R.M.D. submitted to paternity testing in July 2011. The test confirmed that he was the father of K.A.D. but not the father of K.M.'s other two children. Although the Division again left messages at the phone number R.M.D. provided, he did not contact the Division until September 8, 2011. On September 23, R.M.D. appeared in court and tested positive for marijuana. The court ordered the Division to schedule and permit visitation after R.M.D. completed a substance abuse evaluation and so long as he was not under the influence at the time of the visit. The court also ordered the Division "to arrange for therapy with [R.M.D.] and the maternal caregivers."

When R.M.D. finally submitted to an evaluation in October 2011, he tested positive for marijuana and alcohol. During that evaluation he admitted his use of marijuana was a problem and that it was difficult for him to stop. At that point, which was more than two years after K.A.D. was placed in the custody and care of the Division and the home of her maternal grandparents, R.M.D. stated that he was ready to commit to treatment. On November 1, 2011, the court ordered the Division to provide supervised visitation for R.M.D., but R.M.D. did not contact the Division to arrange it. Even though a caseworker visited R.M.D. on November 23, preparatory to scheduled psychological and bonding evaluations, and reminded him about visitation, R.M.D. made no arrangements to schedule visits, and he did not appear in court on December 13, 2011.

R.M.D. appeared for psychological evaluations after canceling his first appointment. Dr. James Loving, a clinical psychologist, evaluated R.M.D. and the bond between R.M.D. and K.A.D. and K.A.D. and her maternal grandparents. Based on R.M.D.'s admission to daily use of marijuana and R.M.D.'s professing that his use of the substance was not having any impact on his life, Dr. Loving concluded that he was at high risk of using the substance whether or not his daughter was present. Considering R.M.D.'s behavior since K.A.D.'s removal, Dr. Loving opined that R.M.D. was either unable or unwilling to serve as a consistent, reliable or effective parent for K.A.D. In Dr. Loving's opinion, R.M.D.'s substance abuse was not only indicative of a risk to the child but also cause for a broader concern about his stability, responsibility and motivation to make the basic changes necessary to allow him to care for K.A.D. in the foreseeable future.

With respect to bonding, although Dr. Loving found K.A.D. to be a child who comfortably interacted with others, he found that she gave no indication of recognizing R.M.D. He noted that she asked more than once whether it was time for her to leave. Based on his observations of the interaction between father and daughter, Dr. Loving concluded that K.A.D. had no emotional attachment to R.M.D. and that it was unlikely that R.M.D. would take the time and make the effort necessary to develop one.

In contrast, Dr. Loving found that K.A.D.'s grandparents were "clearly important, central attachment figures" to K.A.D. In his opinion, her adoption by them would be better for her social and emotional functioning and separation from them would put her at risk of serious and enduring harm affecting her ability to connect with and attach to others in a healthy way.

R.M.D. also presented expert testimony. Dr. Kenneth Goldberg indicated that R.M.D. lacked direction and skills and had not yet found himself. In Dr. Goldberg's opinion, R.M.D. was not presently capable of parenting K.A.D. on his own. Nevertheless, it was his opinion that K.A.D.'s interest would be best served by having access to her father. He recommended mediation to workout visitation and custody for K.A.D. and the members of her paternal and maternal families.

R.M.D. also testified at trial. Between January 2010, when K.A.D. was placed with the Division, and January 2012, when the termination trial was held, he had lived with relatives in New Jersey and Pennsylvania, primarily with his aunt in New Jersey who had sheltered and supported him for about six years. He explained that he had applied for "a couple of jobs" at Target and at the mall, had worked "under the table" and held a part-time job in a factory in Pennsylvania for about one month. R.M.D. had not spent any of his earnings on the support of his daughter because he had a lot of fines to pay.

When asked about how he spent his time, R.M.D. said he generally stayed at home. R.M.D. admitted having a problem with marijuana and asserted that he intended to "get [himself] in drug evaluation classes." He explained that he had failed to attend treatment arranged by the Division because of "financial problems," but he "[did not] think" he called the caseworker to explain that he needed money to participate. He could not explain why he had not done that, but he said he did not tell his lawyer about his inability to pay for treatment because he did not think there was anything his lawyer could do.

R.M.D. acknowledged his minimal efforts to visit K.A.D. He testified that he had called K.A.D.'s grandparents about visitation only "a little bit more than twice," because K.M.'s father did not want him around K.M. or the children and had a racial bias against him and his family. According to K.M.'s mother, however, R.M.D.'s father, step-mother and paternal grandmother visited K.A.D. in her home and she and her husband once took the children to R.M.D.'s father's home. She admitted that she had not permitted R.M.D. to enter her home with his family during that visit. Although the grandmother had not heard from anyone in R.M.D.'s family for about two years, she said she would be willing to have them visit with K.A.D. because they were part of the child's family. She indicated, however, that she would want to supervise the visits in the beginning and that she would not want R.M.D. to visit until he had a stable home and was acting like a father that K.A.D. could be proud of.

R.M.D. maintained that he had not surrendered his parental rights because he believed K.M.'s parents would not let him see K.A.D. and he wanted to be part of her life. As R.M.D. explained it, he did not want K.A.D. "try[ing] to figure out who her father is." When asked about why he had not scheduled visitation supervised by the Division, R.M.D. said he had no answer for that and admitted that, apart from the bonding evaluations, he had not seen K.A.D. for two years.

According to R.M.D., things would be different when he had money coming in from an anticipated settlement of a personal injury action and less stress. His plans to participate in caring for K.A.D. were plans for the future. He testified: "I would rather [K.A.D.] be with her grandparents right now because I can't do [anything] for her right now. But [in] the future I would love to try to do something for her."

In reviewing a judgment terminating parental rights, this court must determine whether the trial court's decision is "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). N.J.S.A. 30:4C-15.1a(1)-(4) provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). Proof of each of the four elements is required.

As noted at the outset of this opinion, R.M.D.'s objections are limited to the court's determinations on two of the four elements. The judge addressed both of these elements of the best interests standard in his oral decision.

The judge found that the Division made reasonable efforts to assist R.M.D. in addressing his unwillingness or inability to parent that had harmed K.A.D. N.J.S.A. 30:4C-15.1(a)(3). Reciting the substantial evidence, he found that the Division's repeated efforts to schedule evaluations and arrange substance abuse treatment were foiled by R.M.D.'s failure to keep appointments, participate in treatment, arrange for supervised visitation, respond to messages and attend court proceedings. On that evidence, the judge concluded that the Division "made all appropriate services available to R.M.D. but for reasons best known to him he did not participate in them."

The judge also gave alternatives to termination appropriate consideration. Ibid. The judge considered and rejected Dr. Goldberg's proposal for a different approach mediation with the maternal grandparents and providing R.M.D. and his family time to get involved with K.A.D. He concluded that given R.M.D.'s "historic unwillingness to address his issues" and his family's involvement, which was limited to a visit two years prior to trial, the "open-endedness" of Dr. Goldberg's "approach will . . . doom it to failure" and only delay the permanency K.A.D. needs. Noting that R.M.D. had never suggested a member of his family willing to care for K.A.D. and that K.A.D.'s maternal grandparents were willing to adopt K.A.D. and her step-sister and step-brother, the judge concluded that as a matter of law Kinship Legal Guardianship was not an option. That conclusion was clearly correct. P.P., supra, 180 N.J. at 509.

Judge Schlosser also carefully articulated his findings and reasons for concluding that termination would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(3).

[I]t is not disputed by [R.M.D.] that he lacks the means to care for [K.A.D.] and that she is in a good home. Candidly he has testified that he really wants to preserve his rights to visit while he has also indicated he would like to have custody down the road. This is not realistic as to the facts that have presented themselves.

Dr. Loving's testimony as to whether a termination of parental rights would do more harm than good is very persuasive. [K.A.D.] has bonded with her maternal grandparents and enjoys her sibling relationships. [K.A.D.], he opines, really has no bond with [R.M.D.] and to terminate it will cause no harm. To terminate what does exist between [K.A.D.] and her maternal grandparents, on the other hand, would cause her harm and would place her at a high risk of harm. The opinion of Dr. Goldberg which is to the contrary, is on balance not persuasive.

R.M.D. is, the [c]ourt finds, not in a position to parent his daughter and has no reasonable expectations that he can do so in the future. [K.A.D.'s] best interests require permanency and to terminate the parental rights of [R.M.D.] to allow for an adoption clearly and convincingly would do no more harm than good.

This court may not disturb the trial court's findings in a termination case "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). We recognize that the Division's pre-complaint efforts to contact and provide services to R.M.D. were minimal and that visitation for R.M.D. was ordered late in the proceeding. Nevertheless, we are confident that the record as a whole, including R.M.D.'s testimony about his efforts to see K.A.D., clearly and convincingly supports the judge's findings. We are further convinced that the judge's conclusions are based on a proper application of the controlling legal principles and not wide of the mark.

The reality, sad as it may be, is that while the Division was providing assistance to K.M. and to her parents, who were caring for K.A.D. and her step-brother and step-sister, R.M.D., who spoke with a caseworker on the very first day the Division became involved with his family, never made himself available to take advantage of the Division's assistance. The trial court did not err in concluding that K.A.D. was entitled to permanency without further delay for R.M.D. to get himself in a position to do something for his daughter. There is nothing in this record that indicates the Division "excluded, discouraged or interfered with [R.M.D.'s] ability to remain a part of" K.A.D.'s life. To the contrary, the Division offered assistance and his response demonstrated, at best, indifference; D.M.H., supra, 161 N.J. at 392.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families. The reorganization includes the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.