NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. O.C.

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NOT FOR PUBLICATION WITHOUT THE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.

O.C.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF T.C., a minor.

_______________________________

March 11, 2014

Submitted February 4, 2014 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-33-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Frank, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.C. (Janet L. Fayter, Designated Counsel, on the brief).

PER CURIAM

Defendant O.C. appeals a judgment terminating his parental rights to his daughter, T.C., born February 2, 2004. O.C. challenges the trial court's findings that the New Jersey Division of Child Protection and Permanency (the Division) proved by clear and convincing evidence that it (1) made reasonable efforts to provide services to help O.C. correct the circumstances that led to T.C.'s removal, and (2) considered alternatives to termination of parental rights. O.C. also contends that, contrary to T.C.'s wishes, the Law Guardian advocated in favor of terminating O.C.'s parental rights. We are satisfied from our review of the record and applicable legal principles that O.C.'s arguments are without merit and affirm.

O.C. and T.C.'s mother, N.H.1, have a long history with the Division, primarily due to their drug use and his criminal conduct. On July 16, 2011, T.C. was removed from O.C.'s care when he was arrested and detained for shoplifting. T.C., who was never returned to her father's care, currently resides with her maternal grandmother, who wishes to adopt her.

O.C.'s claim that the Division failed to make reasonable efforts to help him overcome the problems that led to T.C.'s removal is twofold. First, he contends that although he was in jail during various periods after T.C.'s removal, the Division did not afford him any visitation when he was out of jail. Second, he claims that when he told a Division caseworker he wanted to participate in "programs," he was advised that it was "too late," as T.C. was "up for adoption."

The following evidence was not disputed. First, from the time of his arrest in July 2011 to the time of trial in June 2013, O.C. spent a "substantial" amount of time in jail. He was intermittently in jail from July 2011 to July 2012, but incarcerated uninterruptedly from July 2012 to June 2013. Second, from July 2011 to July 2012, O.C. failed to provide the Division with any contact information. The Division's only contacts with O.C. during the latter period were when he placed one telephone call to the Division and twice appeared in its offices. Third, as the Division did not know where O.C. was or how to communicate with him, the Division was unable to arrange visitation between him and T.C. Fourth, in July 2011 and February 2012, the Division offered but O.C. failed to attend drug and alcohol counseling.

O.C. also claims the Division failed to consider alternatives to termination. According to O.C., "the evidence is unclear that [the maternal grandmother] demanded adoption and refused kinship legal guardianship." The record reveals however that the grandmother expressly stated she wants to adopt T.C. Further, the Division's expert psychologist, Eric Kirschner, Ph.D., testified that kinship legal guardianship is not in T.C.'s best interests, as T.C. requires the finality and permanency of adoption. Otherwise, she will continue to indulge in the unhealthy "fairytale fantasy" her father will become a fit parent and regain custody of her.

O.C.'s final argument is that the law guardian advocated in favor of terminating parental rights, which O.C. claims was against the wishes of T.C., the law guardian's client. The unrefuted evidence is however that T.C. wants to be adopted by her maternal grandmother, because T.C. feels "safe" and "happy" in her grandmother's care. A bonding evaluation indicated the existence of a strong bond between the grandmother and T.C., and by all accounts T.C. is thriving under her care.

At the conclusion of the trial, the court found that the Division proved all four factors in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and terminated O.C.'s parental rights to T.C. As O.C. does not dispute the court's findings the Division met the first, second and fourth factors, we address only the third factor, which requires that the Division prove it

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[.]

[N.J.S.A. 30:4C-15.1(a)(3).]

The specific facts of each case are to be considered to determine if the Division made reasonable efforts. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002)). The success or failure of such efforts is not dispositive of whether the Division met its burden. Ibid. (citing In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999)). In determining whether the Division has made reasonable efforts, the court may consider a parent's refusal to engage in the services the Division offers or recommends. N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 610 (1986).

Here, O.C.'s failure to have visitation when he was not incarcerated was of his own making. When intermittently out of jail from July 2011 to July 2012, he declined to provide the Division with any contact information, thwarting visitation.

As for his claim that he advised the Division he wished to enroll in "programs" but was informed it was "too late," O.C. did not specify when he asked for additional services or what services he contends he should have received. What was not contested is that the one service the Division did recommend drug and alcohol counseling was spurned by O.C. We are satisfied that under the circumstances O.C.'s claim the Division failed to exert reasonable efforts is unfounded.

O.C.'s claim the Division failed to consider alternatives to termination of parental rights is also unsupported by the record. The maternal grandmother wants to adopt T.C. Our Supreme Court has held that "'when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3).'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 211 (2010) (citing N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004)). Further, the unrefuted expert testimony was that adoption is in T.C.'s best interests. Finally, O.C.'s contention the law guardian advocated in favor of terminating parental rights against T.C.'s wishes is devoid of any support in the record.

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," we only disturb factual findings when "manifestly unsupported by or inconsistent with 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); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). In addition, we defer to the family court's "special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412. The judge's findings are fully supported by the evidence.

Affirmed.

1 On January 31, 2013, N.H. executed an identified surrender of T.C. in favor of her parents.