NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.W and G.R., JR
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1790-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
K.W.,
Defendant-Respondent,
and
G.R., JR.,
Defendant-Appellant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF I.R.,
a Minor.
______________________________
Submitted December 2, 2019 – Decided December 24, 2019
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0051-17.
Joseph E. Krakora, Public Defender, attorney for
appellant, G.R., Jr. (Robyn A. Veasey, Deputy Public
Defender, of counsel; James Daniel O'Kelly,
Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Salima E. Burke, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
Defendant G.R., Jr. (Gary) appeals from an order, entered after a five-day
trial, terminating parental rights to his daughter, I.R. (Ivette), who was born in
December 2010.1 The Division of Child Protection and Permanency (the
Division) removed Ivette from the care of her mother, K.W. (Karen) and
subsequently commenced this action against both parents. 2 The Division
1
We use pseudonyms throughout this opinion to protect the privacy of the
children and parties, and preserve the confidentiality of these proceedings. R.
1:38-3(d)(12). Our use intends no disrespect or familiarity.
2
Karen's parental rights were terminated in December 2015. She did not appeal
that order.
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2
simultaneously removed Karen's other children, H.M. (Harper), M.D. (Mark)
and L.W. (Laura).3
Gary argues the trial judge erred in finding the Division proved the first,
second and third statutory factors used in determining parental-rights
termination petitions. N.J.S.A. 30:4C-15.1(a). He asserts the trial court's
opinion is "devoid of any reference to a controlling statute or case law," and
contains no "relevant specific legal conclusions" relating to the many facts it
found. He also avers "the trial court failed to reference the second and third
prongs in its oral opinion or identify the facts that established satisfaction of
those prongs – by clear and convincing evidence."
We apply our limited standard of review, upholding "the trial court's
factual findings . . . when supported by adequate, substantial, and credible
evidence[,]" and "defer[ring] to the trial court's credibility determinations," yet
reviewing de novo, without "'any special deference,'" the "'trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference.'" N.J. Div. of Youth & Family
3
Harper was placed with her father and is not involved in this appeal. Laura's
father surrendered his parental rights, and the trial court terminated Mark's
father's parental rights after entering a default and holding a proof hearing.
Neither father filed an appeal.
A-1790-18T3
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Servs. v. R.G., 217 N.J. 527, 552-53 (2014) (quoting Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Although the trial
court's findings of fact and conclusions of law were anomalously terse, we
affirm. See R. 1:7-4(a).
Parents have a constitutionally protected right to the care, custody and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753-54 (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 . . .,'
and '[r]ights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651 (1972) (third alteration 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., 161 N.J. at 347.
The constitutional right to a parental relationship, however, is not
absolute. R.G., 217 N.J. at 553; N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's
obligation to protect children from harm. N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10
(1992). To effectuate these concerns, the Legislature created a four-prong test
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for determining when a parent's rights must be terminated in a child's best
interests. N.J.S.A. 30:4C-15.1. N.J.S.A. 30:4C-15.1(a) requires that the
Division prove by clear and convincing evidence:
(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.
[See also A.W., 103 N.J. at 604-11.]
Gary does not challenge the trial judge's finding regarding the fourth
prong: the Division established termination of his parental rights will not do
more harm than good. N.J.S.A. 30:4C-15.1(a)(4). We, therefore, examine the
evidence that supports the judge's findings on the first three prongs.
Gary's argument that the trial court's findings regarding the first prong
were insufficient to establish that he abandoned Ivette under N.J.S.A. 30:4C-
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15.1(b)(1) and N.J.S.A. 30:4C-15(d), lacks sufficient merit to warrant discussion
in this opinion. 4 R. 2:11-3(e)(1)(E). Although the Division alleged
abandonment under those statutes in its complaint for guardianship, the sole
theory it advanced at trial was the best interests standard under N.J.S.A. 30:4C- -
15.1(a).
To establish prong one under that statute—"[t]he child's safety, health, or
development has been or will continue to be endangered [or harmed] by the
parental relationship[,]" N.J.S.A. 30:4C-15.1(a)(1)—the Division "must show
that the alleged harm 'threatens the child's health and will likely have continuing
deleterious effects on the child.'" N.J. Div. of Youth and Family Servs. v. F.M.,
4
The Division must commence "a petition to terminate parental rights" if
for a period of six or more months . . . the parent,
although able to have contact, has had no contact with
the child, the child's resource family parent or the
[D]ivision . . . and . . . the parent's whereabouts are
unknown, notwithstanding the [D]ivision's reasonable
efforts to locate the parent.
[N.J.S.A. 30:4C-15.1(b)(1)(a)-(b)].
Similarly, a petition must be filed if the parent, after the removal and acceptance
or placement of the child by the Division, "fail[s] for a period of one year to
remove the circumstances or conditions that led to the removal or placement of
the child, although physically and financially able to do so, notwithstanding the
[D]ivision's reasonable efforts to assist the parent . . . in remedying the
conditions." N.J.S.A. 30:4C-15(d).
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211 N.J. 420, 449 (2012) (quoting K.H.O., 161 N.J. at 352). "To satisfy this
prong, [the Division] does not have to wait 'until a child is actually irreparably
impaired by parental inattention or neglect.'" Ibid. (quoting In re Guardianship
of D.M.H., 161 N.J. 365, 383 (1999)). "Serious and lasting emotional or
psychological harm to children as the result of the action or inaction of their
biological parents can constitute injury sufficient to authorize the termination of
parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact,
a "parent's withdrawal of [his or her] solicitude, nurture, and care for an
extended period of time is in itself a harm that endangers the health and
development of the child." D.M.H., 161 N.J. at 379. In evaluating this prong,
courts are also "mindful of strong policy considerations that underscore the need
to secure permanency and stability for the child without undue delay." Id. at
385. And, a parent's failure to provide a permanent, safe, stable home for a child
is a harm in and of itself. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.
Super. 76, 111 (App. Div. 2004); N.J. Div. of Youth & Family Servs. v. B.G.S.,
291 N.J. Super. 582, 591-92 (App. Div. 1996).
The evidence supports the trial court's conclusion that Gary harmed Ivette
by absenting himself for an extended period after her removal by the Division,
at which time he was not even considered a placement option because he had a
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child endangerment conviction and refused to comply with the terms of a safety
protection plan implemented by the Division. Indeed, Gary testified at trial that
he could not care for Ivette at that time.
Gary did not visit with Ivette from December 2015 through January 2018.
Despite efforts by the Division to find him—including database searches,
caseworker visits, letters and telephone calls—his whereabouts were unknown
for a substantial period, and the Division considered him "missing." In May
2017, the trial court relieved the Division of its efforts to locate and contact Gary
until such time that he contacted the Division.
Furthermore, he declined to work with the Division or provide an address
for assessment as a suitable home for Ivette. When offered the opportunity for
therapeutic visitation with Ivette, Gary missed the first two intake appointments
in December 2017 and, despite letters and texts from the Division to reschedule,
Gary did not respond and finally appeared for intake on January 17, 2018.
Although present at the removal hearing in December 2015, Gary
absented himself from Ivette's life for about two years. The trial court found
incredible Gary's contention that he thought Karen was caring for Ivette. It also
found that Gary "chose one family over another" inasmuch as he was living with
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his wife and their children. And even when he began therapeutic visitation with
Ivette, he was not consistent with scheduled visits.
Dr. David Brandwein, an expert in the field of psychology, conducted a
psychological evaluation of Gary in June 2018. He testified at trial of his
concern about Gary's absence from Ivette's life, stating, "that's not an
inconsequential amount of time, that's a long time to a child . . . [t]o be basically,
physically and psychologically absent from her life." He expressed that Gary
only "decided to step to the plate when his parental rights were at risk, not during
the earlier period of [the] case" when Ivette was in resource care. Brandwein
summarized his findings:
This is not somebody who has a personality disorder
who – that would make them unable to care for
children. The question here is really [Ivette]. What is
the impact that his absence had on [Ivette], both
physically and psychologically. And what [Gary] – I'm
trying to find the right word – unwittingly, he didn't
mean to let happen in that interim time period, which is
that [Ivette] found, along with her siblings, a pre-
adoptive home, with foster parents that have been
caring for her for quite some[]time, and that she has
built quite a strong relationship with.
Brandwein found most compelling "the bond [Ivette] had with her
resource parents and the bonds [Ivette] has with her siblings." He opined,
despite Gary's positive relationship with Ivette, "too much time has passed," and
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"the impact of engaging in zero efforts to be reunified with this child for . . .
months" contraindicated reunification with Gary. Brandwein also expressed
concern over Gary's inconsistent therapeutic visits.
Brandwein testified Gary's extended absence contributed to the formation
of a bond between Ivette and her resource parents and further contributed to
Ivette's bond with Laura and Mark. He also opined Ivette would suffer serious
and enduring harm if she were removed from her resource parents' care or from
Laura and Mark. And, that if these bonds were broken, Gary would not be able
to remedy the harm.
Brandwein also testified that Ivette would experience harm if there is a
continued delay in permanent placement. He concluded Gary "basically
abandoned his child to the care of the [D]ivision. And that is something very
serious and significant," and that termination would not do more harm than good
here, because Ivette's most secure psychological bonds are with her resource
parents and her siblings, Laura and Mark.
Dr. Alan Lee, an expert in the field of psychology, conducted
psychological evaluations of Gary in June 2017 and July 2018, and bonding
evaluations of Gary and Ivette in July 2018, Ivette and her resource parents in
July 2017 and July 2018, and Ivette and her siblings in August 2017 and July
A-1790-18T3
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2018. Lee testified at trial that Gary could not provide Ivette with the stable,
positive bond that she needs. He also opined Ivette had formed a significant and
positive bond with her resource parents, who were willing to adopt Ivette
together with Mark and Laura, both of whom were also living with the resource
parents, and with whom Lee found Ivette had formed a significant and positive
bond. Lee also opined there was a significant risk that Ivette would suffer severe
and enduring psychological or emotional harm if her relationship with her
resource family ended.
Gary's withdrawal from Ivette's life for many months, and his failure to
offer a safe and stable home in Ivette's hour of need, posed harm to Ivette's
safety, development and well-being. We note Ivette was being treated for
trauma, after being diagnosed with adjustment disorder, child neglect, attention
deficit disorder and oppositional defiant disorder. Gary was nowhere to be
found while Ivette suffered through this period. We further consider Ivette's
need for permanency, and Gary's failure to provide same, in determining there
was sufficient evidence to support the trial court's finding that the Division had
presented clear and convincing evidence to establish the first statutory prong.
Gary argues the trial court failed to "make explicit prong two findings"
and its "passing" conclusion that Gary "did not comply with services and when
A-1790-18T3
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he did, he completed the services 'he wanted to do[,]'" was not based on
substantial, credible record evidence, because Gary did complete services.
Our Supreme Court has recognized the second statutory prong focuses not
on whether the parents "are themselves unfit or whether they are the victims of
social circumstances beyond their control," but on "whether it is reasonably
foreseeable that the parents can cease to inflict harm upon the children entrusted
to their care." A.W., 103 N.J. at 607. "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." N.J.S.A. 30:4C-
15.1(a)(2). "[T]he inquiry centers on whether the parent is able to remove the
danger facing the child." F.M., 211 N.J. at 451. The Court cautioned that "the
price of focusing on the plight of the parents . . . is that the child is kept in
waiting for what the decision-makers view as the ideal or best placement." A.W.
103 N.J. at 601-02. What most concerned the A.W. Court was the lack of
evidence of "any realistic likelihood that the parents would ever be capable of
caring for the children." Id. at 614. Even when parents are not blameworthy
because they were "shortchanged by either nature or society," this prong is
satisfied when their behavior "indicates a further likelihood of harm to the child
in the future." Id. at 615-16.
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The trial court found the Division proved Gary was unwilling or unable to
eliminate the harm caused by Ivette's lack of permanency and stability. The
court cited Gary's initial refusal to engage with the Division, and his subsequent
failure to fully comply with services, as raising "serious concerns regarding his
ability to care for this child at this time," and noted Gary avoided telling the
Division where he lived.
Although Gary eventually complied with services the Division offered—
except individual counseling—his participation, as noted by Brandwein, was
inconsistent, and his prolonged absence from Ivette's life was telling evidence
that he was unwilling or unable to both eliminate the harm she faced and provide
a safe and stable home for her. Furthermore, Lee found Gary's parenting
knowledge and childrearing skills to be limited and advised against Gary serving
as an independent caretaker for the foreseeable future. Brandwein was
concerned about Gary's failure to appreciate the impact if Ivette was removed
from her resource parents and siblings. Even Gary's psychological expert, Dr.
Gerard Figurelli, was concerned about Gary's ability to parent adequately over
a sustained period of time, given Gary's lack of consistent compliance with
therapeutic visitation, and its impact on Ivette.
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Moreover, as the trial court found, crediting Lee's and Brandwein's
testimony—and disbelieving Figurelli's expert testimony—it "didn't make sense
that denying permanency to this child, after being at a placement for three years,
could possibly be in her best interest." The court also found it would cause more
harm than good to separate Ivette from her resource parents and her siblings,
recognizing Ivette's need for permanency.
Notwithstanding Gary's compliance with most of the Division's services,
the experts' views that he was not yet ready to assume Ivette's care, and his
dilatory actions that impacted on Ivette's sense of permanency, supported the
trial court's conclusion that the Division met its burden regarding the second
prong.
Finally, Gary argues the Division did not make reasonable efforts to
provide services designed to reunite him with Ivette, and failed to consider his
sister-in-law and her mother as alternatives to termination so as to satisfy prong
three.
The third prong requires the Division to undertake "reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child's placement outside the home" and requires the court to consider
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"alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).
Reasonable efforts are defined in N.J.S.A. 30:4C-15.1(c) as
attempts by an agency authorized by the [D]ivision to
assist the parents in remedying the circumstances and
conditions that led to the placement of the child and in
reinforcing the family structure, including, but not
limited to:
(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.
"Reasonable efforts depend on the facts and circumstances of each case."
R.G., 217 N.J. at 557, and "may include consultation with the parent, developing
a plan for reunification, providing services essential to the realization of the
reunification plan, informing the family of the child's progress, and facilitating
visitation," N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281
(2007). "The emphasis here is on the steps taken by [the Division] toward the
goal of reunification." F.M., 211 N.J. at 452. "'The diligence of [the Division]'s
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efforts on behalf of a parent is not measured by' whether those efforts were
successful." Ibid. (quoting D.M.H., 161 N.J. at 393).
This prong also requires that the court consider alternatives to the
termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The statute "does not
permit the Division to embark on a course set for termination of parental rights
and adoption by a foster parent without at least first exploring available relative
placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.
568, 580 (App. Div. 2011); see also N.J.S.A. 30:4C-12.1. An important
objective of the statutory scheme is "prompt identification of relatives and notice
to them of the results of the investigation and the potential for termination if the
child remains in foster care." Ibid.
We find no merit in these arguments. The Division offered a number of
services with the goal of reunifying Gary and Ivette. We also note the Division
regularly sought to contact Gary. Nonetheless, Gary was subsequently provided
with therapeutic visits, a substance abuse evaluation, urine screens,
psychological evaluations, domestic violence classes, parenting classes, and
individual therapy. He withdrew from individual therapy based on his belief
that it was unnecessary, and he inconsistently participated in therapeutic
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visitation. As the trial court found, "[h]e did the services he wanted to do" but
did not demonstrate that "his number one priority was getting [Ivette] back ."
We determine Gary's argument, relying on Lee's mention that some
enumerated services were for Gary's personal benefit, to be without sufficient
merit to warrant discussion here. R. 2:11-3(e)(1)(E). Gary had to address his
own problems, as found by the expert, before he could act as a proper caretaker
for Ivette, especially considering the trauma she endured. Again, the Division
provided therapeutic visitation in an effort to reunite father and daughter, a
program with which he did not faithfully comply.
We, likewise, find insufficient merit in Gary's argument the Division
failed to consider his sister in law, M.R. (Mary), or her mother, S.S. (Susan),
when he allegedly proposed them as placement options for Ivette during the
removal hearing in December 2015. The Division kept all three children
together when it placed them with A.B. (Anna)—whose husband is related to
Gary, and who was familiar with the family on December 15, 2015—prior to the
children's placement with the resource parents.
Mary, a former Division employee, testified at trial that she volunteered
to serve as a placement option for Ivette in August 2017, but that she would not
be willing to care for all three children. On August 10, 2017, the Division sent
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a letter to Mary ruling her out as a placement option for Ivette on a best-interests
basis because it was "determined by a psychologist that removal from [the
resource home] and her siblings that she is placed with would be detrimental to
[Ivette]." Mary had previously agreed that she did not want to disrupt Ivette's
placement. She confirmed during her testimony that she was ruled out as a
placement option but did not seek to appeal that determination.
Susan testified she was a licensed foster parent and in December 2015
was willing to serve as a long-term placement for Ivette. But, as of the time of
trial, she was no longer able to serve as a placement option, and she was
uncertain in 2015 whether she would have been able to accommodate Ivette's
siblings.
Adoption supervisor Heather Delapa testified on behalf of the Division,
consistent with the documentation in the record regarding possible placements
for Ivette, that Susan was a resource parent for the Division and also Gary's
sister-in-law's mother. She was ruled out as a placement for Ivette, as well as
for Laura and Mark, because she was not willing to care for the children in her
home. Susan reiterated this position immediately before trial.
The trial court found the Division reasonably considered other placement
options, including Mary and Susan. The court found the Division's rule-out of
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Mary was reasonable in light of Ivette's best interests, because Ivette had
developed bonds in her resource home and should not be separated from her
resource parents and siblings. Further, Mary could not take all three children.
The court also found Susan's testimony that she could have taken Ivette in
December 2015, lacked credibility and was "a little bit all over the place"
because she was not clear whether she would have taken Ivette alone, or all the
siblings together.
The children stayed with Anna until a change in conditions at her home
necessitated movement of the children, ultimately to the resource home where
they currently reside. There is clear and convincing evidence the Division
fulfilled its role to consider alternatives to termination.
We find insufficient merit in the remainder of Gary's arguments to warrant
any discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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