NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. Z.E.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

Z.E.R.,

Defendant-Appellant,

and

P.T.K.,

Defendant.

____________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Z.E.R., minor.

____________________________________________

November 14, 2014

Submitted October 27, 2014 Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-137-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Cecilia M.E. Lindenfelser, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renee Greenberg, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor Z.E.R. (David Valentin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant Z.E.R. (Zak)1 appeals from a November 2013 order terminating his parental rights to his son, Z.E.R. (Evan). Zak claims that the trial court erred in concluding that the Division of Child Protection and Permanency (Division) proved, by clear and convincing evidence, that his parental rights should be terminated. We disagree and affirm.

I.

Evan was born in December 2011 at Jersey City Medical Center (JCMC). The Division received a referral from JCMC stating that Evan's mother, P.T.K. (Pamela), did not receive prenatal care, was homeless, had no income, had no plans for the child, and had a long history with the Division.2

Because Pamela and Zak lacked permanent housing and means of support, the Division conducted an emergency removal of Evan.3 The Division placed Evan with S.T., a family friend suggested by Pamela.4 The trial court entered an amended order to show cause, finding that Evan's removal was required because Pamela had unsuitable housing, an open Division case, no income, and an untreatable mental illness. As it was uncertain whether Zak was Evan's father, the court ordered Zak to complete paternity testing and granted him weekly supervised visits with Evan.

During a meeting with a Division worker, Zak revealed that his stepdaughter, K.V., and his sister, D.R., might be possible placement options for Evan. The Division explored these possibilities.

K.V. told the Division caseworker that she was not interested in caring for an infant and did not object when informed that she had been ruled out as a possible caretaker.

After the initial visit with D.R., the Division attempted to reestablish contact with her several times, but never received a response. The Division sent D.R. three letters, but she neither responded to the letters nor did she make any contact with the Division about being a placement for Evan.

Zak informed the Division that he was going to attend parenting classes, however, he failed to attend the first session, claiming that he had a job interview. After Zak failed to attend the next session, he was discharged from the class. During a meeting with a Division worker, Zak admitted that he had no reason for failing to attend the second session and said that he was not interested in parenting classes.

Zak also failed to attend a scheduled psychological evaluation. The appointment was rescheduled, and although Zak arrived at the office, he failed to complete the necessary forms and left before meeting with the doctor.

From December 2011 to January 2012, Zak visited Evan approximately six times. By February 2012, however, Zak stopped visiting Evan and failed to maintain contact with the Division. Between February 2012 and June 2013, Zak did not visit Evan.

In March 2012, a Division worker learned that Zak was incarcerated. Although Zak was released in April 2012, he did not reestablish contact with the Division or Evan.

At a hearing, the court ordered Zak to attend a psychological evaluation, a substance abuse evaluation, and parenting skills training. Zak failed to fully comply with any of the services offered by the Division.

At a permanency hearing, the court found that the Division's permanency plan of termination of parental rights and adoption by S.T. was an appropriate and acceptable plan for Evan. The court noted that Zak had not "offered himself as a caretaker and did not make himself available to the Division for services." The Division then filed a guardianship complaint.

In early 2013, the Division again tried to establish contact with Zak through field visits, phone calls and letters, but was unsuccessful. The Division contacted the Parent Locator Service, Child Support and Paternity Unit and learned that Zak had a second address in Brooklyn.

After being contacted by the Division, Zak attendeda psychological evaluation at the Division's offices. Zak admitted during the evaluation that he last saw Evan in June 2012. When asked if he wanted Evan to be placed with him, Zak was ambivalent: "I'm all the way out on Coney Island. Talking about it. It would be hard for me to get him. I'm not working right now." Zak was scheduled for a bonding evaluation with Evan later that day, but left before it could take place. The Division rescheduled the bonding evaluation twice, but Zak failed to appear both times.

After a bonding evaluation with S.T. and Evan, the psychologist concluded that Evan had developed a close attachment with S.T. and that S.T. had been providing Evan with a permanent, safe, and secure home.

In June and July 2013, Zak visited Evan four times at the Division's office, but stopped visiting Evan and failed to maintain contact with the Division afterward.

D.R. eventually contacted the Division and expressed interest in being a placement resource for Evan. A Division worker met with D.R. and explained that Evan had been in placement for over a year in a home with his siblings. As a result, the Division sent D.R. a rule-out letter. D.R. did not appeal the rule-out letter.

At the guardianship trial, Pamela voluntarily surrendered her parental rights to Evan. The Division presented three witnesses, including an expert psychologist. Defendant did not testify or produce any other witnesses. The Law Guardian did not present witnesses, but supported the Division's request for termination.

The trial judge found that it would be in Evan's best interests to terminate Zak's parental rights considering Evan's relationship with S.T. and the lack of any relationship between Evan and Zak.

Zak raises the following issues on appeal

i.

the trial court's decision terminating Zak's parental rights to Evan was not supported by clear and convincing evidence and should be reversed.

(a) the trial court erred in finding that zak caused evan harm.

(b) the trial court erred in finding that DCPP made reasonable efforts to preserve the family.

II.

A parent's right to raise and maintain a relationship with his or her child is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing In re Adoption of Children by L.A.S., 134 N.J. 127 (1993)). Those constitutional rights, however, are not absolute and must be balanced against the State's responsibility to protect the welfare of children. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). To balance parental rights and the State's interest, courts apply the "best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The standard provides that parental rights may be terminated if the Division can prove all of the following four elements by clear and convincing evidence

(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).]

Although Zak does not contest the Division's proofs as to prongs two and four, we address each of the four prongs as they "are neither discrete nor separate [but] overlap to provide a composite picture of what may be necessary to advance the best interests of the [child]." N.J. Div. of Youth & Family Services v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005)).

A.

Zak's first argument is that the trial court erred in finding that he caused Evan harm. The focus of the first prong is on the effect of harm on a child's health and development arising from the parent-child relationship over a period of time. K.H.O., supra, 161 N.J. at 348. A parent's inability to nurture and care for a child for a prolonged period of time is a cognizable harm. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 352-54). Moreover, courts do not need to wait until the child suffers irreparable harm caused by parental inattention before acting. D.M.H., supra, 161 N.J. at 383.

From the record, it is clear that Zak is unable to parent Evan and that placement of Evan with Zak will endanger the child's health and development. At the time of Evan's birth, Zak lacked permanent housing and was unemployed. Zak also has a history of homelessness, marijuana use, unemployment, and incarceration. Efforts by the Division to address these concerns were unsuccessful because Zak failed to take advantage of services offered to him.

Also of concern was Zak's failure to exercise his visitation rights with Evan. Zak's failure to maintain contact with his son for such long periods of time amounts to a withdrawal of the nurture and care a child requires. When asked whether Zak would want Evan to live with him, he offered a number of excuses, including his unemployment status and living arrangement in Coney Island. This failure to provide day-to-day care is a cognizable harm that endangers the welfare of Evan. We discern no error regarding the trial court's finding as to the first prong.

B.

Under prong two, the focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352. Parental unfitness is established by showing either that the parent is (1) "unwilling or unable to eliminate the harm facing the child" or (2) "unable or unwilling to provide a safe and stable home for the child," where such delay in permanence will add to the child's harm. N.J.S.A. 30:4C-15.1(a)(2); K.H.O., supra, 161 N.J. at 352. Parental "dereliction and irresponsibility" such as the inability to provide a stable and protective home and the withholding of parental attention and care will satisfy the second prong. K.H.O., supra, 161 N.J. at 353.

The Division provided Zak with numerous referrals to assist him in becoming a viable parent for his son. Zak, however, failed to complete any of these services.

In addition, Zak's failure to visit his son or maintain contact with the Division for extended periods of time is tantamount to parental irresponsibility and inattention within the scope of prong two. Such dereliction supports the trial court's finding that the Division proved prong two by clear and convincing evidence.

C.

Zak's next argument is that the trial court erred in finding that the Division made reasonable efforts to preserve the family. Under prong three, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). Alternatives to termination of parental rights must also be considered. Ibid.

Placements with relatives obviate the need for termination of parental rights. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 488-89 (App. Div. 2012). If a relative identifies himself or herself as a potential caretaker, the Division must undertake a reasonably prompt and fair investigation of this potential placement option. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 87 (App. Div. 2013). There is no presumption, however, of placing children with relatives over third parties. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003).

Finally, the reasonableness of the Division's efforts "is not measured by their success." L.J.D., supra, 428 N.J. Super. at 488 (citing D.M.H., supra, 161 N.J. at 393). Even if the Division's efforts were deficient, the best interests of the child standard still controls in determining whether termination was appropriate. L.J.D., supra, 428 N.J. Super. at 488.

As discussed above, the Division offered Zak numerous services to address the circumstances which led to Evan's placement outside the home, but Zak failed to complete any of the programs and rarely visited Evan.

The Division also explored relatives provided by Zak as potential placement options. Zak's stepdaughter, K.V., was unwilling to serve as a resource for Evan and did not object to being ruled out as a potential caretaker for Evan. The Division also met with D.R., but later determined that it would be in Evan's best interest to remain in his current placement. Thus the Division sent D.R. an official rule-out letter. Although D.R. was entitled to appeal that decision under N.J.A.C.10:120A-3.1(b), she failed to do so. SeeJ.S., supra, 433 N.J. Super.at 86 (explaining that administrative appeal of a rule-out decision is possible when there is a finding that a relative is unfit or unwilling to serve as a potential caretaker), certif. denied, 217 N.J.587 (2014).

Therefore, the trial court accurately concludedthat the Division made reasonable efforts to preserve the family under the third prong.

D.

Lastly, under the fourth prong, the Division must prove that termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). It is not necessary to show that no harm will befall a child after severing parental ties. K.H.O., supra, 161 N.J. at 355. Instead, the appropriate inquiry is whether "the child [32] 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." Ibid.

Evan is in a placement with S.T. and his siblings. During a bonding evaluation, the psychologist concluded that Evan developed a close attachment with S.T. The psychologist further concluded that S.T. has been providing Evan with a permanent, safe, and secure home. S.T. already adopted one of Evan's siblings, wants to adopt his other half-sibling, and wants to adopt Evan.

In contrast, Evan lacks any meaningful relationship with Zak. Zak's inability or unwillingness to visit Evan, or provide him with a permanent home, makes it unlikely that the termination of Zak's parental rights will do more harm than good to Evan.

Therefore, we are satisfied that there is substantial credible evidence in the record to support the trial court's termination of Zak's parental rights under N.J.S.A. 30:4C-15.1(a).

Affirmed.

1 Fictitious names are used to preserve confidentiality and to avoid confusion as defendant and his son have the same three initials.

2 Pamela's history with the Division dates back to 1998. The Division terminated her parental rights to six of her children.

3 This was a DODD removal pursuant to the Dodd Act. N.J.S.A. 9:6-8.29.

4 Two of Pamela's children were already in S.T.'s care.