DIVISION OF CHILD PROTECTION AND PERMANENCY v. O.S.

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NOT FOR PUBLICATION WITHOUT THE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.S.,

Defendant-Appellant,

and

S.S.,

Defendant.

__________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF V.I.S.,

A Minor.

__________________________________

December 28, 2015

Submitted December 16, 2015 Decided

Before Judges Alvarez and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-171-14.

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

John H. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant O.S. appeals from the January 15, 2015 judgment of guardianship of the Family Part terminating his parental rights to his son, Victor,1 born in 2012.2 Defendant contends that the Division of Child Protection and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports the termination on appeal as it did before the trial court.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the decision to terminate defendant's parental rights. Accordingly, we affirm substantially for the reasons set forth in Judge Linda Baxter's thorough oral opinion rendered on January 15, 2015.

We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference Judge Baxter's factual findings and legal conclusions. We add only the following comments.

Victor was born with gastroschisis, a congenital birth defect where the stomach does not develop properly, causing the child's intestines to be outside of his body. Doctors immediately performed an operation in which the child's bowel was placed in a plastic tube that was then placed into his abdomen. Victor uses an ileostomy bag and must be fed through a nasogastric (NG) tube.3

Defendant has never met Victor.4 Nine days after Victor was born, defendant was incarcerated in Connecticut.5 Defendant has remained in prison throughout the child's life and, at the time of the trial in January 2015, did not expect to be eligible for release on parole for at least another eleven months.

After his birth, Victor was hospitalized for approximately seven months. During that period, S.S. did not regularly visit the child and, because the hospital staff was concerned about her ability to care for the child, the Division became involved in the case. Although the hospital discharged Victor to S.S.'s care on October 23, 2012, S.S. had to return the child to the hospital eight days later, and the child remained hospitalized for almost a month. After Victor was discharged in November, S.S. again returned the child to the hospital in December 2012 because she was unable to care for him. When the hospital was thereafter unable to contact S.S., the Division executed an emergency removal and assumed custody of the child. Victor was placed in a foster home where the caregivers were registered nurses.

The Division spoke to defendant's mother, who stated that she is disabled and unable to care for Victor. In November 2013, the Division explored the possibility of placing Victor with defendant's sister, V.R., who lived in Florida. V.R. expressed an interest in caring for the child and the Division made arrangements with Florida officials to conduct a home study. In December, the Division arranged for a visit in New Jersey between V.R. and Victor for January 6, 2014. However, V.R. did not come to New Jersey for the visit and, by February 2014, V.R. had still not made plans to see Victor. That same month, the Florida officials advised the Division that V.R. was living with her fiancé, who had a criminal record involving "drug charges (distribution) and a charge of unlawful sexual activity."

A caseworker spoke to V.R., "who indicated that she was aware of [her fiancé's] drug charge but not the other charges." The caseworker told V.R. "that [the fiancé's] charges would rule her out" as a possible placement for Victor. V.R. stated "that her fiancé could leave the home, [but] they [were] planning to get married." On February 14, 2014, the Division sent V.R. a "rule-out letter," advising her that she had been "disqualified as a potential resource parent" for Victor because she was living with an adult who had "a criminal conviction for a crime outlined in" N.J.S.A. 30:4C-26.8(d). The Division sent V.R. a second rule-out letter on February 21, 2014.

In February 2014, the Division placed Victor in the care of one of his former in-home nurses, M.W., and her husband. Victor has lived with his foster family since that date. M.W. and her husband wish to adopt Victor, and they are able to provide the child with the specialized care needed to address his complicated medical issues. Dr. Frank J. Schwoeri, Ph.D., who testified on behalf of the Division as an expert clinical psychologist, conducted a bonding analysis and, at trial, opined that Victor had a "specific attachment" to his foster parents and that if the child "were to remain in the care of [his] foster parents . . . it's highly likely that his attachment will be a secure one." Dr. Schwoeri also testified that the child would face "both immediate and long-term negative consequences[,]" including self-control, emotional control, and relational trust issues, if that attachment were severed.

In August 2014, Leanna Torres, a Division caseworker, met with defendant in Connecticut, where he was still incarcerated. Defendant had never requested any visitation with his son and, even though M.W. spoke with defendant on a conference call to encourage him to send Victor letters or photographs, defendant never did so. Torres asked defendant "if he had any additional relatives who would be interested in caring for" Victor. Defendant "stated not at that time[,]" and explained that "[h]e had to wait until he was out -- no longer incarcerated, before he could talk to his family."

In October 2014, defendant asked Torres if he could have a paternity test. At that time, defendant was living in a half-way house. Although Torres made arrangements for the test, defendant did not attend it.

In December 2014, Dr. David Mantell, Ph.D., an expert in forensic clinical psychology, conducted a psychological evaluation of defendant.6 Defendant admitted that he knew little about Victor, had never attempted to arrange for visitation with the child, and had never sent his son any pictures or letters.

Based upon his evaluation, Dr. Mantell opined that defendant had symptoms of Antisocial Personality Disorder, which would affect his ability to ever be able to parent Victor. Dr. Mantell stated that it would take two to three years of "establishing benchmarks of adaptation to a non-criminal pattern of life" in the community before the extent of defendant's rehabilitation could be determined and, only then, could the issue of whether defendant could care for Victor be considered.

Dr. Mantell testified that defendant had no plans for how he was going to care for a medically fragile child upon his release, although defendant stated that he might be able to have his former girlfriend assume that role for him. Based on his evaluation, Dr. Mantell concluded that defendant would not be able to provide Victor with the safe and stable care and environment necessary to ameliorate the harm the child would suffer if removed from M.W.'s care.

Defendant did not testify and did not present any witnesses at the trial.

In her comprehensive opinion, Judge Baxter found that the Division had proven all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and that termination of defendant's parental rights was in Victor's best interests. On this appeal, our review of the trial judge's decision is limited. We defer to her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we conclude that Judge Baxter's factual findings are fully supported by the record and, in light of those facts, her legal conclusions are unassailable.

Defendant contends that the rule-out letters the Division sent to V.R. on February 14 and 21, 2014 did not meet all of the requirements of N.J.S.A. 30:4C-12.1 and, therefore, the matter must be remanded to determine if V.R. is interested in being considered as resource parent. We disagree.

N.J.S.A. 30:4C-12.1(a) provides that the Division "shall initiate a search [of] who may be willing and able to provide the care and support required by the child" in any case where it accepts a child into its care or custody. In turn, N.J.S.A. 30:4C-12.1(b) states that if the Division determines that the relative is unable to care for the child, it

shall inform the relative in writing of: (1) the reasons for the [Division's] determination; (2) the responsibility of the relative to inform the [Division] if there is a change in the circumstances upon which the determination was made; (3) the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months; and (4) the right to seek [the Division's] review . . . of such determination.

In this case, the February 14, 2014 letter advised V.R. that she was disqualified from being a resource parent because she was living with her fiancé, who had a criminal record. In a handwritten statement at the end of the letter, the Division also advised V.R. that she had the right to appeal the decision. However, the letter did not advise V.R. that, if there was a change in V.R.'s circumstances, she should contact the Division, and that it was possible that defendant's parental rights could be terminated if Victor remained in resource family care for more than six months. The February 21, 2014 letter had the same omissions, and also did not include any statement concerning V.R.'s right to seek review of the Division's determination.

Under the circumstances of this case, however, we discern no need for a remand so that a corrected letter may be sent to V.R. The Division documented that it orally advised V.R. why she was being ruled out as a resource parent and V.R. told the caseworker that she intended to marry her fiancé. Thus, V.R. was aware the child was in the Division's care; knew why she could not serve as a resource parent; and understood that she could not be considered if she continued to live with her fiancé.

Moreover, as our Supreme Court has held, "[d]elay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 581 (App. Div. 2011) (citing In re Guardianship of R., 174 N.J. Super. 211, 221 (App. Div.) (affirming termination although Division failed to provide a parent with visitation because termination was in child's best interests), certif. denied, 85 N.J. 102 (1980)). Although V.R. initially expressed an interest in caring for Victor, she never followed through by coming to New Jersey to meet the child. After the Division told her she could not be considered as a resource parent, she never contacted the Division and defendant never advised the Division that V.R. wanted to again be considered as a possible placement. As Judge Baxter found, Victor's placement with M.W. and her husband serves the child's best interests. Therefore, we reject defendant's contention on this point.

Affirmed.

1 We refer to the child by a fictitious name to protect his identity.

2 The judgment also terminated the parental rights of Victor's mother, S.S., who voluntarily surrendered her parental rights to the child on October 7, 2014. S.S. has not appealed the trial court's decision to terminate her parental rights.

3 Victor is fed at least three times a day through the NG tube. At night, he is fed continuously for six hours through a pump. His ileostomy bag must be changed every other day. Victor takes six medications in the morning and two in the evening. Four of these medications are administered through the NG tube, one by injection, and the other through an inhaler. Victor has between two and four regular doctor appointments each month. He attends medical day care three days a week and an overnight nurse is assigned for eight hours each evening to assist in caring for him.

4 Defendant and S.S. are not married and, according to defendant, "never dated[.]" Defendant stated that S.S. became pregnant with Victor because he and S.S. were "messing with each other." Once S.S. discovered she was pregnant, "she moved back to New Jersey," while defendant remained in Connecticut.

5 On August 2, 2012, defendant was sentenced to five years in prison on drug charges, with a six-year period of "special parole." On two prior occasions, defendant was incarcerated on similar charges.

6 Dr. Mantell met with defendant at the half-way house in Connecticut.