NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.H.

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NOT FOR PUBLICATION WITHOUT THE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.

K.H.,1

Defendant,

and

D.T.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF B.H., Minor.

______________________________

April 9, 2014

 

Submitted March 4, 2014 Decided

 

Before Judges Fisher, Koblitz and O'Connor.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-184-09.

 

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

 

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

 

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

PER CURIAM

D.T. (David2) appeals from the July 9, 2013 judgment terminating his parental rights to his daughter B.H. (Beth). He argues that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence either that it made reasonable efforts to unite him with his daughter or that termination of his parental rights would not do more harm than good. He also argues that his attorney was ineffective because he did not present expert testimony. We disagree with these arguments and affirm.

Beth tested positive for PCP at birth in 2007. She went from the hospital to foster care and never returned to the custody of either parent. By the time of trial, she was in her fifth placement. David was involved with drugs and had been incarcerated twice for several years before Beth was born. He did not appear for numerous psychological and drug assessments, but was evaluated by Dr. Charles E. Daly, who opined in his 2007 report that David

does not have the ability to care for his children in a productive and safe manner. He virtually ignores his own personal problems and projects his children's state of affairs on to their mother. It is virtually impossible to even attempt to rehabilitate a person who is convinced that he is problem free with regard to the role that he would be expected to play as a custodial parent.

 

David continued to use drugs and failed to attend drug rehabilitation. In April 2008 he was evaluated by Dr. Alvaro Gutierrez who recommended that David attend drug and alcohol programs and parenting skills classes. Dr. Gutierrez concluded that David "does not seem to have appropriate judgment or insight to appropriately parent his children at this time."

In September 2009 David was again evaluated, this time by psychologist Dr. Karen Wells. After reviewing the results of psychological tests, she opined that David did not possess the emotional or psychological ability to function as a parent or provide the necessary "stable, secure, and safe home and family environment" for Beth. Dr. Wells testified at trial based on her 2009 evaluation because David failed to attend more recently scheduled evaluation appointments.

David was incarcerated during a portion of the trial. The trial judge summarized David's testimony this way:

He says he is 42 years old, he has not worked in, well, six, seven years, has been incarcerated over and over again, and by his own admission has not in any way succeeded in any of the programs that the Division had set up for him. Unfortunately, he may love his daughter, but his daughter has had no significant relationship with him. There has been visitation for short periods of time, at least during the time that the case was in this court, which was admirable that he wished to do so, but that is a far cry from raising a child everyday, 24/7, and attending to a 6-year-old's needs of education, shelter, food, clothing, etc.

 

On appeal, David raises the following issues:

POINT I: THE EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SATISFY PRONG THREE OF THE BEST INTEREST ANALYSIS OF N.J.S.A. 30:4C-15.1a, AS D.T. WAS DENIED MEANINGFUL VISITATION, HIS FAMILY MEMBERS WERE NOT EVALUATED FOR PLACEMENT, AND CRITICAL SERVICES WERE UNREASONABLY DELAYED OR DENIED.

 

POINT II: THE EVIDENCE ADDUCED AT TRIAL FAILED TO SUPPORT THE COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD AS THE DIVISION FAILED TO OBTAIN AND PRESENT BONDING AYALYSES WITH B.H. AND HER FOSTER PARENT AND B.H. AND D.T. (NOT RAISED BELOW)

 

POINT III: THE TERMINATION OF D.T.'S PARENTAL RIGHTS IS UNWARRANTED BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. (NOT RAISED BELOW)

Appellate review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Due to the family court's "special expertise in the field of domestic relations," the reviewing court should give special deference to its findings of fact. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

Termination of parental rights "implicates fundamental liberty interests that are protected under the United States Constitution." In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999). "[P]arental rights are not inviolate when a child's physical or mental health is jeopardized." New Jersey Div. of Youth and Family Services v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996).

A parent's rights may only be terminated if the Division proves by clear and convincing evidence all four of the following statutory prongs:

(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).]

 

David argues that the Division failed to prove prongs three and four.

I

Prong three requires that the Division make "reasonable efforts," which are defined as:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

 

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

 

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 

(4) facilitating appropriate visitation.

 

[N.J.S.A. 30:4C-15.1c(1)-(4).]

 

The success or failure of unification3 efforts is not dispositive of whether the Division met its burden. N.J. Div. of Youth and Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div. 2007). David argues that the Division did not provide meaningful visitation, failed to evaluate his sister as a potential placement, and delayed or denied other critical services. The judge found to the contrary.

A

David was granted biweekly supervised visits with Beth during the first years of her life and weekly supervised visitation leading up to trial. Given David's continued drug use, frequent refusal to be drug-tested and serious involvement with the criminal justice system, as well as the fact that he never was Beth's caretaker, the visitation provided him was sufficient, reasonable and in Beth's best interests.

B

David's assertion that the Division did not assess his sister as a placement option is not supported by the record. He admitted at trial that he did not give her name to the Division until 2012, at which time the Division began to investigate her. David's sister was not interested in adopting Beth, was uncooperative with the Division and failed to fill out the proper paperwork. See N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 528-30 (App. Div. 2003) (stating that although it is required that the Division investigate relative placement in the best interests of the child, no "presumption of relative placement" exists). David's sister and Beth did not know each other. The Division made sufficient efforts to place Beth with David's sister under these circumstances.

C

David's final argument that the Division delayed or denied critical services is negated by the numerous programs and assessments and other services offered by the Division. The Division encouraged David to seek out-patient drug treatment at New Pathways, and later at Giant Steps. David was ejected from New Pathways three times for noncompliance. Despite the judge's orders, David refused to submit to instant drug screening at least four times and tested positive for drugs consistently since 2007.

The Division also referred David for psychological assessments. Although provided with bus passes, of ten scheduled appointments, David attended only three. He also failed to appear for bonding evaluations. The Division also referred David for parenting classes, but he was ejected from the program for noncompliance. Finally, it is significant that David was arrested many times on drug-related charges, incarcerated on multiple occasions and, at the time of trial, had a death by auto charge pending against him4 and was serving a year-long sentence as a result of a drug conviction.

II

David also argues that the Division failed to prove that termination of his parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The inquiry 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. Generally, "the court must inquire into the child's relationship both with her biological parents and her foster parents," ibid., and "[t]hat is an expert judgment." J.N.H., supra, 172 N.J. at 478.

Typically, to satisfy its burden under this prong, "the State should offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992)). However, in cases where the Division is seeking termination of parental rights "on grounds of current unfitness" of a mother or father to parent his or her child, a bonding evaluation is not essential. See J.C., supra, 129 N.J. at 18. David admitted at trial that he was not yet fit to take custody of Beth.

Furthermore, a bonding evaluation of David and Beth was conducted three years prior to trial. The outdated evaluation was not a result of a Division failure, but rather the result of David's failure to appear for his October 2012 appointment.

III

Lastly, David argues that his trial counsel was ineffective. Parents are entitled to effective assistance of counsel in termination of parental rights proceedings. N.J.S.A. 30:4C-15.4(a); see also N.J. Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007) (stating that the right to counsel in termination cases has both a statutory and constitutional basis). New Jersey courts follow the United States Supreme Court's approach in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) when analyzing appeals grounded in adequacy of counsel claims. B.R., supra, 192 N.J. at 305-06. To show ineffective assistance of counsel, the defendant must: (1) pinpoint acts or omissions allegedly showing unreasonable professional judgment; and (2) show that these acts or omissions had a reasonable probability of prejudicing the judgment. State v. Fritz, 105 N.J. 42, 58-60.

Under the first prong, "[j]udicial scrutiny of counsel's performance must be highly deferential," and shall avoid "viewing counsel's performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). To show a prejudicial effect on the judgment under the second prong, the defendant must demonstrate, that but for the unprofessional errors of counsel, there is a reasonable probability that the result would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

David retained psychologist Dr. Lidia D. Abrams to conduct a bonding evaluation of David and Beth in November 2011. David argues that his attorney's choice not to present Dr. Abrams as a witness was ineffective. David claims that "[t]here is a reasonable probability that had defense counsel called Dr. Abrams to testify, [David]'s parental rights would not have been terminated."

The law guardian argues that David's ineffective assistance claim fails to satisfy the first Strickland prong because, in light of defendant's failure to attend the bonding evaluation scheduled by the Division, it is likely he would have been precluded from calling his own expert in any event. We agree.

Moreover, Dr. Abrams' findings were not particularly favorable to David. Her report concluded that:

[David]'s problems with the law may stem from limited opportunities but also from poor judgment. Nevertheless, he may be ready to learn from his mistakes at this point, and his poor judgment has never directly led him to abuse or neglect of his children. Both his children care for him and are comfortable with him.

 

Practically speaking, [David] is incarcerated and unable to care for his children at this time. When he is released he will continue to have limited resources . . . . [David] appears to be an asset in his children's lives, although he may not be able to care for them on his own.

 

[(Emphasis added).]

 

Such testimony would not have made a difference in the outcome of this trial.

Affirmed.

1 K.H., the mother, did not appeal.

2 We use fictitious names to protect the identity of the child.

3 We use "unification" rather than "reunification" because David was never Beth's caretaker.

4 The outcome of this charge is unclear from the record.