NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.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NOT FOR PUBLICATION WITHOUT THE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.

D.R.,

Defendant-Appellant.

IN THE MATTER OF J.S.,

A Minor.

January 15, 2014

Submitted December 10, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-13-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant D.R. appeals from the April 18, 2013 judgment of guardianship terminating his parental rights to his biological daughter, J.S., whom for the sake of anonymity, we refer to as Jane, born August 2006. For the reasons that follow, we affirm.

On August 4, 2011, Jane was placed with a resource family who wishes to adopt her. On August 2, 2011, Jane had been referred to plaintiff New Jersey Division of Child Protection and Permanency (Division) by a community hospital where she had been taken for treatment of second-degree burns on the palm of her hand and on her wrist. The hospital staff were concerned about Jane's mother L.S.'s inconsistent explanation of the circumstances, and also because Jane had multiple abrasions on her face. L.S. had brought the child to the emergency room three days earlier, claiming that Jane had fallen down eight or nine steps. Ultimately, all the injuries were attributed to L.S.'s paramour (not defendant). The court determined, by a preponderance of the evidence, that he and L.S. had abused and neglected Jane, and on December 7, 2012, L.S. made an identified surrender of the child in favor of the resource family.

D.R. married L.S., when he was twenty-one, on October 10, 2005. They separated in March 2006, and Jane, as we have noted, was born in August of that year. D.R. remained in Tennessee. D.R. acknowledged wondering if the child was his daughter, since L.S. became pregnant while they lived together. Allegedly, L.S. once told him that he was not the biological father. After their relationship ended, L.S. obtained a restraining order against D.R., although he was unable to explain the reason for issuance. In October 2010, L.S. moved with Jane to New Jersey after having lived in both Tennessee and Alabama.

D.R.'s paternity was confirmed on January 30, 2012. Despite being assigned New Jersey counsel, D.R. has never attended any court hearings, nor has he ever met Jane. He came to New Jersey only once, when the Division funded his travel and motel stay so that he could be evaluated. When he made the trip, D.R. informed the psychologist conducting the evaluation, Brett Biller, Ph.D., that he had not eaten in two days. Biller actually shared his lunch with him.

During the course of that evaluation, D.R. reported that he had been placed in foster care at age twelve. At age seventeen, in 2001, he was convicted of sexually abusing a twelve-year-old girl in Tennessee. D.R. claimed that the sexual contact was consensual, and that he was highly intoxicated at the time. He was incarcerated for over a year. After his release, he met and married L.S.

In childhood, D.R. was diagnosed as bipolar and has at various times been prescribed Depakote, Paxil, Wellbutrin, Lithium, Lamictal, and Buspar. He cannot afford medication. He continues to suffer from periods of depression and anxiety. During the proceedings, D.R. has lived at the premises of an employer and then at a friend's home, has no surviving family, and abuses drugs and alcohol. Because of his 2001 conviction, he is classified as a sex offender.

During the trial, D.R. took the position that the Division should transport him to New Jersey for visitation twice a week. He wrote letters and sent gifts to Jane. The child, who suffered significant emotional harm from the abuse she experienced in her mother's home, did not wish to be involved with D.R. Apparently, L.S. introduced Jane to various paramours, claiming they were her father. It is not yet known whether Jane's mental health status, which makes her a special-needs child, is permanent in nature or is the result of the trauma experienced at her mother's hands. In any event, even after a telephone conference with Jane's therapist, D.R. refused to consent to the incrementally increasing visitation plan that the therapist recommended.

Telephone conferences between D.R., case workers, and Jane's foster parents were scheduled on three occasions. Of those three attempts, D.R. made himself available only once. In similar fashion, he did not reliably participate telephonically during the trial, including on the last day. He made no effort, during the various months the proceedings were pending, to obtain stable employment, stable housing, or to move to New Jersey even though, as the trial judge put it, he had no obvious reasons to remain in Tennessee. In fact, D.R. did not offer himself as a placement for the child. Since he has no surviving family, no relative was available for placement.

In addition to his incarceration for sexual assault, D.R. has been arrested on several occasions for violating the conditions of his sexual offender status, such as by failing to register, or by residing with children. He has also been arrested for possession of controlled dangerous substances, specifically pain medication, failure to pay fines, public intoxication, and in 2009, domestic assault. The Division experts uniformly opined that at this point in time, D.R. was unable to either fulfill the responsibilities of being a parent, or to provide for the emotional needs of this child.

On the other side of the ledger, Jane is strongly bonded to her resource family, which includes a ten-year-old daughter, whom she views as a sibling. The resource family reliably transports Jane to her bi-weekly therapy sessions, even though the sessions are located forty-five minutes away from their home. They have also enrolled Jane in extra-curricular activities, such as gymnastics and karate. Jane's symptoms, including avoidance anxiety and sleep difficulties, have abated somewhat since her placement in the home, which Jane's therapist characterized as a loving environment.

In rendering his decision, the trial judge acknowledged that defendant's status as a registered sex offender might shift the burden on him to demonstrate by clear and convincing evidence that contact with the child would not be adverse to the child's best interest. N.J.S.A. 9:2-4.1. The court found, however, that regardless of the statute's potential impact, it was ultimately irrelevant as this case was "a classical termination of parental rights."

As to the first prong of the statutory test the Division must meet, the judge found that the facts were to a great extent undisputed. D.R. never even asked L.S. about the child conceived during their marriage. When notified of the possibility that he was Jane's father, and when that possibility was confirmed by a paternity test, D.R. made "hollow" requests for visitation. D.R. did not come to New Jersey. He did not attend any court hearings. D.R. talked to his lawyer and the Division on the phone, and limited his participation in the proceedings although "[t]here was nothing holding him in Tennessee."

In the judge's opinion, defendant's failure to come to New Jersey established "corroboration" that his interest in Jane was "less than significant and less than adequate[,]" as if he had been "truly interested in the child," he would have relocated. The court relied upon Biller's expert testimony that D.R.'s involvement stemmed from his wish to satisfy his own need for validation. The judge noted that D.R. did not want Jane placed with him, but rather wanted the child to be moved to Tennessee to facilitate visitation. Yet D.R. rejected the child's therapist's recommendations for incrementally increasing contact. The judge also noted that D.R. had no place to live, and was "sleeping on a couch at a friend's apartment." Therefore, he opined the child's health and development would be endangered by continuation of the parental relationship.

The judge found, as to the second prong of the statutory test, that defendant had not improved his situation in the many months after paternity was confirmed before the final decision date. D.R. had substance abuse issues and untreated psychological disorders which made it unlikely that he could safely parent Jane, especially as he did not acknowledge her serious problems. D.R. had not even established that he had completed the sex offender treatment required by Tennessee. D.R. was either unwilling or unable to provide the child with a safe and stable home, and delay in providing her with a permanent placement would only add to that harm.

With regard to the third prong, the Division attempted to provide D.R. with services in Tennessee, which he declined because he claimed he had no transportation. The Division funded two evaluations, therapy and treatment for the child, access as recommended by the therapist, and kept D.R. informed with reference to case planning. D.R. continued to state "that he was not offering himself as a caretaker, thereby obviating the necessity for the usual services and the ordinary services which are provided to parents or other[s] seeking caretaking responsibilities." Insofar as alternatives to termination, the court noted there were none as D.R. had no one whom he could suggest for a relative placement. The Division therefore met the third prong of the test.

As a result of these considerations, and the child's attachment to her resource family, the trial judge found that termination of parental rights would not do more harm than good. The child was improving in her current placement, and likely to thrive if she remained there. On the other hand, there was no bond whatsoever between D.R. and the child. For the reasons stated by the trial judge, we agree that the Division met its statutory burden by clear and convincing evidence. See N.J.S.A. 30:4C-15.1(a).

We add some brief comments in response to the issues D.R. raises on appeal. D.R. contends as follows:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION'S EVIDENCE WAS NOT COMPELLING ENOUGH TO JUSTIFY TERMINATION OF PARENTAL RIGHTS UNDER THE CONTROLLING "BEST INTERESTS" TEST.

(A)

THE FACTORS CITED BY THE TRIAL COURT DID NOT CONSTITUTE FIRST PRONG "HARM" THAT WAS COMPELLING ENOUGH TO TERMINATE D.R.'S PARENTAL RIGHTS TO JANE.

(B)

THE FACTORS CITED BY THE TRIAL COURT DID NOT CONSTITUTE SECOND PRONG "PARENTAL UNFITNESS" THAT WAS COMPELLING ENOUGH TO TERMINATE D.R.'S PARENTAL RIGHTS TO JANE.

(C)

THE TRIAL COURT ERRED IN FINDING THAT DCPP PROVED THE THIRD PRONG OF THE BEST INTERESTS TEST BECAUSE DCPP WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.

(D)

TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

POINT II

D.R.'S RIGHT TO PRESENT A DEFENSE WAS PREJUDICED.

Clearly, parents have a constitutionally protected right to the care, custody, and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (second omission in original) (citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare . . . ." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

The constitutional right to the parental relationship, however, is not absolute. Ibid.; see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following:

(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 . . . . ;

(3) The [D]ivision 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.

These four factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. "The considerations involved in determining parental unfitness are 'extremely fact sensitive' and require particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007).

We find no merit to D.R.'s first claim of error, that the court improperly analyzed the first statutory prong. D.R.'s arguable indifference to his wife's pregnancy, and the birth of his child after their separation, was predictive of his conduct once his paternity was confirmed and the child's needs were conveyed to him. Despite his asserted interest in Jane, he did not relocate to New Jersey, he did not attempt to find housing, a steady job, or otherwise take any step that would enable him to offer Jane a safe and secure home.

Because D.R.'s status during the pendency of the proceedings remained unchanged, any assessment of the first and second prongs is basically the same. Defendant has untreated substance abuse and mental health issues, in addition to his lack of employment and stable housing. The record is devoid of any reference to D.R. attempting to change his situation for Jane's sake. Jane, on the other hand, has found a home with a family who wishes to adopt, where her mental health is improving. D.R. is unable or unwilling to provide a home for Jane, and any further delay will not advance her need for permanency.

D.R. also alleges the court erred in finding that the Division had offered reasonable services. Again, we disagree. The Division initially arranged for D.R.'s evaluation in Tennessee, and then flew him to New Jersey to be evaluated here. The Division also attempted to put D.R. in touch with Jane's foster family in an effort to open lines of communication between father and child. When services were located in Tennessee, D.R. declined to become involved. The Division made more than adequate attempts at providing D.R. with services that may have enabled him to offer Jane the home she deserves.

D.R. also contends the court erred in concluding that termination of parental rights would not do more harm than good. Certainly, in this case where Jane had absolutely no contact with, or knowledge of, her father, and was bonded to foster parents who wish to adopt, the conclusion was inescapable and unassailable.

Lastly, D.R. contends that his right to present a defense to this termination proceeding was prejudiced because the court refused to admit into evidence letters he wrote to Jane, finding that they were neither relevant nor properly authenticated. We consider this argument to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It is inconceivable that the admission of the letters would have had any impact on the court's final judgment.