DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.A.C.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4390-16T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

T.A.C.,

     Defendant-Appellant.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF T.A.C., JR. and C.C., Minors.
_________________________________


              Submitted January 17, 2018 – Decided March 14, 2018

              Before Judges Fisher and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FG-12-0098-16.

              Joseph E. Krakora, Public Defender, attorney
              for   appellant  (Steven   Edward  Miklosey,
              Designated Counsel, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jason Rockwell, Assistant
              Attorney General, of counsel; Lisa Cerasia,
              Deputy Attorney General, on the brief).
           Joseph E. Krakora, Public Defender, Law
           Guardian, attorney for minors (Danielle Ruiz,
           Designated Counsel, on the brief).

PER CURIAM

     Defendant,      Trevor,   appeals     from   a    guardianship   judgment

terminating parental rights to his sons, Thomas and Corey, born

on January 9, 2015 and May 18, 2016, respectively.1                   Defendant

argues the trial court erred in finding the New Jersey Division

of Child Protection and Permanency presented clear and convincing

evidence     under    the   applicable      law   sufficient     to    warrant

termination of his parental rights.               We disagree and affirm

substantially for the reasons set forth by Judge Bruce J. Kaplan

in his comprehensive eighty-four-page written decision rendered

after a five-day trial at which he heard testimony from three

witnesses called by the Division.

     Judge    Kaplan's      thorough   review     of    the   applicable     law

manifested his understanding of the import of a trial judge's

decision to terminate defendant's fundamental and highly protected

parental rights.     Santosky v. Kramer, 
455 U.S. 745, 753-54 (1982);

In re Guardianship of K.H.O., 
161 N.J. 337, 346-47 (1999).                   His




1
   The pseudonyms for defendant and his sons, utilized in
defendant's brief, are repeated here to protect their privacy.



                                       2                                A-4390-16T2
fact-sensitive analysis of each of the four factors2 the State was

required to prove by clear and convincing evidence in order to

terminate   parental   rights   followed   the   Court's   guidance   that

"[t]he balance between parental rights and the State's interest




2
  The Division must prove the following four factors by clear and
convincing evidence before parental rights may be terminated:

            (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); see also N.J. Div.
            of Youth & Family Servs. v. A.W., 
103 N.J.
            591, 604-11 (1986).]




                                   3                              A-4390-16T2
in the welfare of children is achieved through the best interests

of the child standard."     K.H.O., 
161 N.J. at 347.

     The judge recognized that "incarceration alone – without

particularized evidence of how a parent's incarceration affects

each prong of the best-interests-of-the-child standard – is an

insufficient basis for terminating parental rights," N.J. Div. of

Youth & Family Servs. v. R.G., 
217 N.J. 527, 556 (2014), but

specifically   found   defendant   "harmed   these   children   by   his

unwillingness to parent by repeatedly violating the law and being

incarcerated."   He noted

          following [Thomas's] birth in January 2015,
          [defendant]     was    not     released    from
          incarceration until August 2015. [Defendant]
          resided at [a halfway house] from August 2015
          to November 2015.         [He] was then re-
          incarcerated in February 2016.      He was not
          released until June 2016.           He shortly
          thereafter stopped contacting the Division.
          Then, he was re-incarcerated from October 2016
          through November 28, 2016 [reportedly because
          of parole violations]. . . . [Defendant] has
          been incarcerated for approximately half of
          [Thomas's] life.    Further, [he], even when
          released from incarceration, has been required
          to reside in a halfway house. Based on [his]
          Megan's Law status,[3] he is by law a threat to
          these children, and by the terms of his
          [p]arole, he is unable to reside with them.


3
  The record reveals defendant was convicted of aggravated sexual
assault of a twelve-year-old victim and was sentenced to comply
with the Community Registration and Notification Laws (Megan's
Law), 
N.J.S.A. 2C:7-1 to -23; he was also sentenced to community
supervision for life, 
N.J.S.A. 2C:43-6.4.

                                   4                            A-4390-16T2
      Judge Kaplan concluded defendant did not provide a permanent

plan for the children, and was not "available or able to parent";

his physical and emotional absence harmed the children.           The judge

also found defendant did not "remain substance free for [a]

sustained and prolonged period[] of time," nor did he maintain a

job or stable housing.

      Defendant's present arguments that the court erred because

defendant wanted to participate in his children's lives; "made his

best efforts to engage his children, assuring them repeatedly that

he loves them and look[ed] forward to being with them"; "possessed

the   cognitive   ability   to   acquire,    understand,   and   apply   all

concepts and skills necessary to be [an] effective parent[;]

presented with no child abuse potential nor problematic parenting

attitudes[;] had his own residence[;] and reported an employment

opportunity," (footnote omitted), are without sufficient merit to

warrant discussion in this opinion.         R. 2:11-3(e)(1)(E).   Contrary

to defendant's contention, the ample proofs recited by Judge Kaplan

belie each of defendant's contentions.         He chose to flout the law

instead of preparing to parent his children or establishing a

relationship with them. Further, the State's proofs show he hasn't

the ability to parent, even when he wasn't incarcerated. He failed

these boys at every step in their lives.



                                     5                              A-4390-16T2
      The   judge's     conclusions   relevant    to   the     first     prong

dovetailed with his findings supporting the second prong, a common

occurrence resulting from the overlap of these two factors.                N.J.

Div. of Youth & Family Servs. v. R.L., 
388 N.J. Super. 81, 88

(App. Div. 2006).       The judge found defendant's failure to attend

anger management and substance abuse treatment; failure to address

the Megan's Law restrictions prohibiting his cohabitation with

minors; failure to plan for the children; and continued violations

of his parole supported Dr. Kinya Swanson's4 opinion that "the

overall implication is that [defendant] may continue to rely on

maladaptive approaches to life that sabotage his success, ability

to remain free from incarceration, ability to remain sober from

illicit drugs, and ability to provide a safe and stable existence

for   a   child   in   his   care."   Judge   Kaplan   noted   Dr.     Swanson

"explicitly and credibly testified that [defendant's] repeated

incarcerations indicate that he is unable to learn from his

experiences and rectify his unlawful behavior and the effect his

incarceration has had on the children in the nature of the lack



4
  Dr. Swanson was called by the Division, and was qualified by the
judge as "an expert in the field of psychology in particular the
area of parenting and bonding." The doctor conducted psychological
and bonding evaluations of defendant and the children, as well as
the resource parents with whom the children were residing. She
had previously conducted the same evaluations on defendant, and
his two older daughters.

                                      6                                A-4390-16T2
of a bond."     The judge's conclusion that defendant was "either

unwilling or unable to alter" his behavior is well-supported by

the record.     Defendant's contentions that his visits with Thomas

"clearly exhibited that he was embracing his role as a father";

the Division did not produce his parole records to prove his

substance abuse; and he showed progress in providing a house and

obtaining employment are either refuted by the record or unproved.

     Judge Kaplan, in considering evidence relevant to the third

prong, noted the Division was relieved of its obligation to make

reasonable efforts to provide services on September 7, 2016, after

defendant's    parental   rights    as    to   his    other    children    were

terminated in a separate action.         That decision is not challenged

here.

     Although     defendant   acknowledges       the     Division     offered

services,     including   anger    management,       parenting    skills    and

substance abuse programs, he argues the "record is devoid of any

attempts made by the Division to investigate what services were

available to [him] while incarcerated, to take affirmative action

to get him into identified services, or to explore any alternative

housing arrangements such as a transfer to a facility which would

be more conducive" to providing services.              The judge found the

Division    facilitated    defendant's     visits      while     incarcerated.

Further, the judge noted Ougeri Baptiste, the Division's adoption

                                     7                                 A-4390-16T2
worker, visited defendant three times in the Essex County jail and

provided him with written instructions for services.           He also

attempted to arrange visitation with Thomas, but the jail would

not allow same.5   After defendant's release from jail in June 2016,

Baptiste referred defendant to specific programs for substance

abuse, parenting skills and anger management.         He did not attend

any of the appointments, stopped returning the Division's calls,

and stopped visiting Thomas in July.       When Baptiste visited the

shelter, which was defendant's last-known address, he was advised

defendant left without providing a forwarding address.        Not until

defendant was arrested for another violation did Baptiste learn,

"around October 2016," that he was in the Essex County jail.

Defendant was released to another halfway house on November 29,

2016.     Considering     the   sporadic    periods     defendant    was

incarcerated; the difficulty of providing services to a parent in

custody, see R.G., 
217 N.J. at 557-58, 562-64; the services offered

by Baptiste while defendant was jailed, and those futilely offered

while defendant was free and in contact with the Division, we find




5
 The judge observed defendant was not permitted visits with Corey
because the infant – who suffered from neonatal abstinence syndrome
– had not been medically cleared, and because of defendant's
Megan's Law status.



                                  8                             A-4390-16T2
defendant's arguments regarding the third prong meritless.6      His

argument regarding the Division's failure to seek his transfer to

another jail does not even merit discussion.   R. 2:11-3(e)(1)(E).

     Defendant reiterates previously proffered proofs in arguing

the Division did not meet its burden regarding the fourth prong:

visitation reports indicated he "displayed genuine concern and

affection for all his children" and Dr. Swanson acknowledged

defendant "showed genuine affection for his children[,] possessed

significant7 parenting tools," and had "the cognitive ability to

. . . be an effective parent."   Judge Kaplan extensively reviewed

defendant's behavior that caused Dr. Swanson concern, including

his extensive criminal history of parole restrictions, parole

violations and multiple incarcerations; his self-reported use of

marijuana while incarcerated; his noncompliance with Division

services; and, most importantly, the impact his behavior had on

his relationship with Thomas and Corey.   The judge also considered

Dr. Swanson's observations that defendant was affectionate toward

his children who "seemed to warm to [him] toward the end of the



6
  Defendant does not argue that the Division failed to consider
viable alternatives to termination.
7
 Dr. Swanson said defendant "evidenced genuine affection for both
children,   although  such   affection  was   not  initiated   or
reciprocated by either child.    [He] evidenced a flexible, yet
assertive parenting style throughout the observation."

                                 9                          A-4390-16T2
[bonding] evaluation" she conducted; and that defendant "had made

some potential progress."

     The judge found defendant's "claim that he has demonstrated

a 'progression in his parenting ability and capacity'" was belied

by the record, and determined that defendant's progress "was not

significant enough to prepare him for parental responsibility,"

echoing Dr. Swanson's opinion that defendant "had demonstrated

some signs of progress in that he reported having an employment

prospect and stable housing, [but] she did not believe that there

had been enough positive change to demonstrate that [his] ability

to parent had strengthened."

     The     judge's    careful    reflections       of   the   bonds     between

defendant and the children, and those between the children and the

resource   parents;     the   status    of   those    bonds;    the    impact    of

termination of those bonds on the children; the children's ability

to recover from termination; and the role defendant and the

resource parents would play in mitigating termination's impact

supported his conclusion that termination of defendant's rights

would not do more harm than good.

     We will not consider defendant's argument that "the court

never provided a single opportunity for [him] to establish a bond

with" Corey in this written opinion.              R. 2:11-3(e)(1)(E).       As we

previously     noted,    Corey's       neonatal      abstinence       syndrome    –

                                       10                                 A-4390-16T2
engendered by his mother's use of cocaine and methadone – and

defendant's restrictions under Megan's Law, prevented visitation. 8

     Half measures and good intentions do not a parent make.

Defendant's persistent failure to fulfill a parental role at any

time after the boys were born resulted in large part from conscious

choices he made.   The thoughtful findings Judge Kaplan made as to

each of the four prongs, as they related to Thomas and Corey, were

supported by credible, clear and convincing evidence, and are

entitled to our deference.   N.J. Div. of Youth & Family Servs. v.

F.M., 
211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 
154 N.J. 394,

413 (1998).

     Affirmed.




8
 During the case management conference on June 22, 2016, the judge
said he was "going to be" suspending defendant's parenting time
with Corey; not until August 5, 2016 was the suspension reflected
in an order, after the judge ruled, pursuant to 
N.J.S.A. 9:2-
4.1(a), defendant – in light of his conviction for sexual assault
– had to prove visitation was in Corey's best interests.

                                11                          A-4390-16T2