August 27, 2007
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF S.A.L. AND L.R., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-51-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, R.L., appeals the Family Part's October 3, 2006, judgment of guardianship by which R.L.'s parental rights to his minor daughters, S.A.L., born April 17, 2004, and L.R., born April 14, 2005, were terminated and guardianship of S.A.L. and L.R. was awarded to the New Jersey Division of Youth and Family Services (DYFS).*fn1
R.L., age fifty-one, and L.A.R., age twenty-three years, are the biological parents of S.A.L. and L.R. S.A.L. has been in DYFS custody since nine days after her birth. L.R. was placed with DYFS immediately upon her release from the hospital after her birth. Both children are in the same foster home placement and have been in the same placement since shortly after their births.
The following testimony was given by Pauline Hart, the DYFS worker from December 2004 to April 2005, Amy Dudley, the DYFS worker from November 2005 to the date of trial, and Dr. Allen Lee, the psychologist retained by DYFS.
The first DYFS referral, when S.A.L. was nine days old, came from the New York child protection agency. L.A.R.'s parental rights to a one-and-one-half-year-old son were in the process of being terminated in a guardianship action in New York, as a result of L.A.R.'s inability to care for her child due to multiple psychiatric disorders, possible alcohol and substance abuse and an unstructured and chaotic life.
L.A.R. was evaluated for DYFS by Dr. Iofin, a psychiatrist, who diagnosed L.A.R. with depressive disorder, NOS, provisional major depressive disorder, and recurrent provisional cannabis use. Dr. Iofin stated that L.A.R. has a learning disability and was herself a victim of neglect and sexual abuse. Dr. Iofin noted L.A.R.'s paramour, R.L., had a criminal record, which included charges of sexual molestation of a minor.
On April 27, 2004, DYFS filed an order to show cause (OSC) and verified complaint seeking custody of S.A.L., which was granted. L.A.R. was referred to Preferred Behavioral Health but L.A.R. declined treatment. L.A.R. began but failed to complete parenting classes. L.A.R. was also offered a substance abuse evaluation but did not appear. As respects R.L., the referral response report indicated he had been "brought up on sexual assault charges" and that there was a DYFS case opened with respect to R.L. and the child born from the sexual assault.
Therefore, DYFS determined that S.A.L.'s removal from the home
L.A.R. shared with R.L. was warranted, because R.L. had recent sexual assault charges pending against him and was thus ruled out as a caretaker.
On March 9, 2005, there was a permanency hearing with regard to S.A.L. It was determined that it was unsafe to return S.A.L. to L.A.R. because of mental health concerns of L.A.R. and L.A.R.'s non-compliance with services offered her at Preferred Behavioral Health as well as her failure to complete parenting classes. Prior to the permanency hearing, R.L. had pled guilty to second-degree sexual assault of a thirteen-year-old girl. The girl gave birth to L.R.'s child when she was age fourteen and he was age forty-one. The sexual assaults continued for a period of five years. R.L., in addition, has an extensive criminal history for multiple offenses, beginning in 1976, resulting in incarceration, parole, probation and violations of probation. L.R. was sentenced to a four-year term of incarceration for the sexual assault. As a result, neither parent was deemed a suitable caregiver for S.A.L. and termination of parental rights was determined by the court to be the appropriate permanency plan.
On April 14, 2005, DYFS learned that L.A.R. had given birth to L.R. On that date, DYFS immediately placed L.R. in a pre-adoptive foster home. DYFS explored relatives for the placement of both girls, including J.A.L., an adult daughter of R.L., and maternal relatives, all of whom were ruled out. J.A.L. was ruled out because J.A.L.'s live-in boyfriend's conviction on a narcotics charge disqualified her from placement pursuant to N.J.S.A. 30:4C-26.8e(3). J.A.L. did not appeal DYFS's reasons for her disqualification.
Before R.L.'s incarceration, DYFS offered him supervised visitation of S.A.L. and parenting classes. R.L. participated in some classes, but there was minimal compliance and he did not finish them.
On November 30, 2005, a psychological evaluation of R.L. was conducted by Dr. Lee at the Mid-State Correctional Facility. Dr. Lee described R.L. as externalizing blame onto other people for his dilemma. Dr. Lee observed R.L. to be hypervigilant, sensitive to perceived slights, frustrated, loud, grandiose and entitled.
Dr. Lee administered two psychological tests on R.L., the personality assessment inventory and the child abuse potential inventory. Dr. Lee made an axis one diagnosis of impulse control disorder NOS with rule out intermittent explosive disorder and paraphilia NOS. On axis two, Dr. Lee diagnosed R.L. with anti-social personality disorder with paranoid narcissistic and borderline traits, which he testified was his primary diagnosis. Axis four psychosocial stressors included R.L.'s incarceration, history of recurring criminal problems, past DYFS involvement and the placement of his children. Dr. Lee described R.L.'s level of functioning as a 58 on a scale of 1 to 100, reflecting an ongoing level of impairment.
Dr. Lee had significant concerns about R.L.'s capacity to care for a minor child, then or in the foreseeable future. Dr. Lee concluded that R.L. had very ingrained and maladaptive character traits causing him to function at a maturity level less than expected for an adult, resulting in problems sustaining himself within the community in a responsible manner. Dr. Lee stated that his conclusion is evidenced by R.L.'s multiple incarcerations, jail admissions, and multiple periods of parole and probation, some of which he has violated.
Dr. Lee stated R.L. presents at a heightened level of criminal recidivism and sexual recidivism, because he is characteristically angry, irritable, hostile, explosive and impulsive. As a result, Dr. Lee opined that R.L. was not in a position to adequately care for a child on his own.
Dr. Lee determined R.L.'s prognosis was quite poor, even though he had participated in some services while incarcerated, because of the ingrained nature of his character traits as evidenced by his recurring criminal problems, including two incarcerations. R.L. told Dr. Lee that he was serving a four-year flat term of imprisonment for sexual assault with a maximum release date of December 2008. Dr. Lee was concerned with R.L.'s minimization and distortion of his responsibility for the sexual assault offense. Dr. Lee opined R.L. would have to participate in services for a minimum of twelve to fifteen months to ameliorate his problems, although even then he would be incapable of being a caregiver to younger children.
Dr. Lee conducted bonding evaluations between the foster parents and S.A.L. and L.R., and R.L. and each of the children, on January 3, 2006. Although, because of the ages of the children, Dr. Lee did not conclude the children would suffer irrevocable harm if separated from their foster parents, Dr. Lee opined that R.L. was not in a position to care for the two children, either at the time of the evaluations or within the foreseeable future. Dr. Lee stated:
These two children have spent a substantial portion of their respective lives, for the child [L.R.] she's essentially spent her whole life and for the child [S.A.L.] has spent nearly half of her life with these caregivers and while there was not the compelling and unequivocal evidence of a psychological bond, it certainly appears that everything is moving in that direction, if you would. These children enjoy these caregivers, they respond very well to the caregivers, they feel nurtured, supported, guided by the caregivers. . . .
Certainly all children need permanency. To delay permanency jeopardizes a child 's opportunities to form a sense of consistency in his or her life and these types of delays can exacerbate a child's emotional and behavioral development and exacerbate their self-concept, their self-esteem and their ability to form other relationships, so certainly the notion of permanency especially at this point where the children have been already out of the birth parents' care for substantial portions of their lives is important.
Dr. Lee found no bond between R.L. and L.R. and an insignificant psychological attachment between R.L. and S.A.L.
Amy Dudley testified as to her contact with the case from November 2005 until May 2006. She also testified from the DYFS records of Amy Lutz, the case worker between Hart and herself. Dudley indicated she had observed the interaction of the children with their foster parents. She described the girls as "thriving in [their] home." Dudley confirmed that the foster parents desired to adopt both girls if they became "legally freed."
Dudley testified that R.L. had been continuously incarcerated since she had the case. She said approval of J.C.,
L.A.R.'s sister, who resides in New York, was still pending interstate approval as of the date of trial. However, J.C. had not taken steps to initiate visits with the girls and has never met the children. DYFS has further concerns that J.C. would provide unauthorized contact with the girls by L.A.R.
Dudley indicated the foster parents have continued to provide photographs of the girls to R.L. in prison. Dudley stated R.L.'s adult daughters were ruled out as placement sources because of one of the daughter's own DYFS history and the other daughter's paramour's criminal history. The rule-outs were never appealed.
R.L. presented testimony from his five adult children, his previous employer, and the former kindergarten teacher of the child he had fathered as a result of his sexual assault of a minor. R.L. also testified.
J.L. stated that she was age twenty-four and R.L.'s daughter. She testified of her father's employment in construction when she was a child and his positive role as a father to her both as a child and an adult. She also stated that R.L. raised her siblings and her when her mother left them, rather than place them in foster care. She indicated she was ruled out as a caretaker for her half-sisters because she had an open DYFS case, which principally involved her ex-boyfriend and his treatment of her four-year old daughter. She stated that she had ended her relationship with him four or five months prior, and had domestic violence retraining orders against him. J.L. claimed she could raise the children in her two-bedroom apartment if given custody of them. She stated that she and a girlfriend are employed cleaning houses and waitressing. Her combined income from all of her positions is $25,000 per year. There is a daycare across the street from her apartment where she takes her own daughter. Although J.L.'s DYFS case is still open, she anticipates it will be closed soon because she gave her DYFS worker her daughter's medical shot records. J.L. stated she had declined to sign a paper that she would not allow contact between her father and her daughter. She admitted not volunteering as a placement resource since 2003-2004. J.L. testified that at the time S.A.L. was removed, she lived with her father and L.A.R. J.L. indicated she had not seen S.A.L. or L.R. for a year. She saw L.R. at the hospital when she was born and she last saw S.A.L. when accompanying her father when he visited S.A.L. prior to his incarceration.
R.L. testified that as of June 20, 2006, he did not have a parole date but believed his parole would be reviewed in November 2006, when he had completed a third of his sentence. His maximum sentence would be completed by October 2008. R.L. stated he visited S.A.L. after she was removed from his custody.
R.L.'s only contact with L.R. was at the bonding evaluation because he was incarcerated prior to her birth.
R.L. stated that he has eight children ranging in age from one to twenty-eight, five of whom he raised for fifteen years and one of whom he raised for five years. R.L. stated that during the time he raised his five adult children, he was self-employed in the construction industry. He expressed the view that L.A.R. could be a fit mother for S.A.L. and L.R. and that he would consider "taking her back" if she went to parenting classes and took her medications. R.L. claims he had suggested to DYFS, as placement resources for S.A.L. and L.R., his adult daughters, J.L. and J.A.L. R.L. contends that J.L.'s rule-out because of an open DYFS case, essentially involving her boyfriend, is no longer valid because the DYFS case with her is closed.
R.L. admitted to having committed the sexual assault of a minor, to which he pled guilty and is currently incarcerated. He also admitted to various other charges constituting his criminal history. R.L. testified that in his seventeen months in prison, he has taken seven classes to improve himself. They included a life skills class, a behavioral modification class, problem solving class, parenting class, speech class, education class and focus-on-the-victim class. R.L. stated he is on a wait-list for an anger management class.
R.L. disputed Dr. Lee's description of the bonding evaluations between him and his daughters. In particular, contrary to Dr. Lee's testimony, R.L. claims L.R. was crying prior to the bonding evaluation in the waiting room next to the room where the bonding evaluation took place. R.L. contends he was unable to control L.R.'s crying because L.R. was separated from S.A.L. in the waiting room. Therefore, the bonding evaluation should have been with both children in the room at the same time. R.L. also claimed S.A.L. related to him immediately and that she related positively to him.
If the children were returned to him, R.L. stated he would either rent or buy a house, go back to his construction business, where he earned $65,000 to $70,000 in net-income prior to his incarceration, and place the girls in daycare while working. R.L. claimed that DYFS only asked L.A.R. to attend parenting classes, not himself, but confirmed he received an April 17, 2004 letter indicating he should attend parenting class. When he went to the first class at the Lakewood Police Station, he was told he was not on the list to take the class. Thereafter, he attended two classes. R.L. also testified the parenting classes were not the type you would want to go to.
A copy of the rule-out letter of J.A.L. was presented to R.L., including the reason for the narcotics offense disqualification of J.A.L.'s paramour. The letter requested J.A.L. to recontact DYFS if her circumstances changed and informed her of her ability to have the rule-out reviewed by a regional agency representative, if she disagreed with the rule-out decision. Although R.L. had not spoken to J.A.L. in months, he was confident she would take S.A.L. and L.R.
Because of his concern of potential emotional trauma to the girls if they were removed from the foster parents, R.L. suggested starting off the renewal of his relationship with them by visits so the girls could become acquainted with him. He admitted that at this point neither child had a relationship with him, and the time necessary to develop a relationship would further delay permanency for the girls. He suggested that he engage in family therapy or reunification classes. R.L. stated he did not want the children placed with L.A.R.'s relatives in New York.
A daycare worker for R.L.'s child, S.R., the child born of the sexual assault for which R.L. is incarcerated, testified as to the positive relationship she observed between R.L. and S.R., when she was S.R.'s pre-kindergarten teacher. G.T., R.L.'s previous employer, testified to his observations of R.L. with his adult children which he described as a loving relationship.
R.L., Jr., R.L.'s son testified he lived with R.L. until age twenty, when he finished his last semester at Ocean County College and started his own family with his girlfriend. He testified to being in the family construction business. In his opinion, R.L. was a good father to him and his sisters. He described R.L.'s relationship with S.A.L. when his father was exercising visitation as one in which S.A.L. enjoyed the visits. At that time S.A.L. was seven months of age.
A.L., L.R.'s seventeen-year-old daughter testified to her observation of S.A.L. when she visited with R.L. before R.L.'s incarceration as that of a happy child. She also testified that she had a good relationship with R.L.
J.A.L. testified to observing a favorable relationship between R.L. and S.A.L. during pre-incarceration visits. She testified she agreed to be the supervisor of visits between R.L. and S.A.L. but was terminated from visiting with S.A.L. because she brought S.A.L. back late to the foster mother because of a snowstorm. J.A.L. also testified to volunteering for custody of both children, a year prior. She stated despite calls to DYFS after DYFS conducted an initial visitation of her home, she never heard from DYFS. J.A.L. testified to being willing to adopt her half-sisters. She lives in a four-bedroom house, with her boyfriend and her son. J.A.L. claims her boyfriend's landscaping business earns $300,000 a year. She is employed by a dog groomer and places her son in a Goddard School, which is where she would place the girls.
J.A.L. testified her boyfriend completed his intensive supervision program (ISP) sentence and that he has had no criminal involvement since. She was informed when her boyfriend was on ISP that her boyfriend's then-current ISP sentence disqualified her from custody of the girls. She asserted that as of the date of her testimony she was prepared to assume custody of the girls. J.A.L. claimed to never having seen a rule-out letter which would have informed her of her right to appeal the rule-out decision.
D.L., another of R.L.'s adult children also testified of observing two favorable visitation sessions between R.L. and S.A.L. She is the oldest of R.L.'s adult children and described a favorable relationship with her father growing up, that he was a hard worker and she looked up to him. She testified DYFS never looked to her as a placement source, although she admitted she never approached DYFS to volunteer to assume custody of the girls. She indicated she would agree to parent the girls but that it would be hard for her to do so because of her responsibilities to her own family.
Judge Ronald Hoffman in his oral opinion, consisting of twenty-six transcribed pages, concluded that DYFS proved by clear and convincing evidence the four prongs of the "best interests of the child" standard set forth in N.J.S.A. 30:4C-15.1(a). See N.J. DYFS v. A.W., 103 N.J. 591, 604-10 (1986). Under this test, DYFS must prove by clear and convincing evidence the following four elements:
(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 to the child. [N.J.S.A. 30:4C-15.1a.]
Our Supreme Court has cautioned that these criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "[T]hey relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
The underlying concern for a child's welfare is the need for permanency within a reasonable timeframe. In re Guardianship of J.C., 129 N.J. 1, 26 (1992). There is a "strong public policy in favor of permanency . . . [and] [i]n all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." In re Guardianship of K.H.O., supra, 161 N.J. at 357. This principle has been codified by New Jersey Title 30, which was amended to conform to the Federal Adoption and Safe Family Act of 1997, prohibiting a parent from keeping his or her child in foster care for a protracted period of time. See N.J.S.A. 30:4C-61.2 (requiring courts to hold permanency hearings for all children who have been in placement for twelve months and, unless there is an exception, requiring DYFS to file guardianship complaints for all children in placement for fifteen of the most recent twenty-two months). Ultimately, the objective of the "best interests of the child" test is to protect the emotional, mental, psychological, and physical well-being of the child. A.W., supra, 103 N.J. at 604.
The court credited and relied on Dr. Lee's conclusions as testified to by him and as contained in his April 24, 2006 report of his psychological evaluation of R.L. in making its findings. The court stated:
R.L. has had a notable and clear history of antisocial behaviors and attitudes. . . .
His adult life has been repeatedly marked with various forms of criminal charges suggesting some compulsive criminal versatility and also clearly indicating his criminal recidivism. He has now two periods of incarceration, multiple jail admissions, to past periods of parole, two or three past periods of probation with some of which he apparently violated suggesting his inability to sustain himself even under some degree of supervision.
He has a clear and utter disregard for others and societal and legal standards. . . . [H]e resists and rejects culpability and instead engages in further rationalization in an effort to escape responsibility for his own inappropriate behavior.
The doctor's diagnosis was impulse control disorder NOS, rule out intermittent explosive disorder, rule out paraphilia, antisocial personality disorder with paranoid narcissistic and borderline traits. He had a GAF assessment, Global Assessment of Functioning, of 58.
The doctor concluded that [R.L.] presents with deeply ingrained and clearly maladaptive personality traits [which have] contributed to his recurring behavior and attitude problems and criminal issues including his narcissistic and self-absorbed orientation and his exploitive and manipulative behavior that has included his admitted sexual activity with . . . a 13-year-old victim when he himself was 41.
[T]he doctor concludes, overall parenting and care-taking capacity and regardless of his release date [R.L.] does not appear at present or within the foreseeable future to be in a position to be an appropriate caregiver to the minor children in his care.
Many of the maladaptive character traits in the doctor's opinion would clearly expose a child to an unsafe and unhealthy environment with a heightened risk of abuse or neglect and [R.L.] is not supported by Dr. Lee to be an independent caregiver to any minor child at this time or within the foreseeable future. Given the lengthy period that has already transpired since the children's removal and given that [R.L.'s] remarkably poor prognosis for any kind of significant or genuine change the doctor feels that the central and primary recommendation focuses on permanency other than with [R.L.]. The doctor concluded that he remained markedly indignant, hostile, hypervigilant and defensive.
The court also relied on Dr. Lee's bonding evaluation in which Dr. Lee found a bond that supported permanency planning in the current foster placement for both children. The court noted Dr. Lee's observation that S.A.L. was placed out of her birth parents' care within the first week of her life and R.L. was incarcerated at the time of L.R.'s birth. Thus there was no bond between L.R. and R.L. Because there would be a very low likelihood of psychological harm if the parental relationship between R.L. and L.R. were terminated permanency planning other than reunification with R.L. was supported.
As respects S.A.L., Dr. Lee, while finding some relationship existing between S.A.L. and R.L., nonetheless concluded that his observations of R.L. with the children and the history of DYFS involvement with the children did not support a significant psychological attachment. Dr. Lee stated that there would be a relatively low risk of psychological harm to S.A.L. if her relationship with R.L. were terminated. As a result, Dr. Lee supported permanency for S.A.L. other than reunification with her father.
The judge also noted R.L.'s extensive criminal history culminating in his plea to sexual assault of a minor for which R.L. was sentenced to a four-year term of imprisonment. The court noted the circumstances of R.L.'s sexual assault conviction, consisting of a sexual relationship with a minor beginning when she was thirteen-years of age until age eighteen and the child conceiving R.L.'s child at age fourteen. The judge noted that while R.L. might be eligible for parole as early as November or December 2007, he might not be released until late 2008. Thus, the court observed that R.L. is unavailable to parent as of October 3, 2006, the date of the court's decision, and the date of his availability depended on his uncertain release.
The court noted services provided to R.L. by DYFS included a psychological evaluation, parenting classes, which he failed to complete, bonding evaluations and supervised visitation of S.A.L. prior to his incarceration. As respects DYFS's efforts in effectuating placement of S.A.L. and L.R., the court noted its efforts at placement with maternal relatives and with J.A.L., who was disqualified because of the statutory disqualification found in N.J.S.A. 30:4C-26.8.
The court observed that DYFS did investigate the request for placement of S.A.L. and L.R. with J.A.L. and that J.A.L. was provided with a rule-out letter and never initiated an appeal. Although J.A.L. testified to not having received the letter, the copy of the March 15, 2005 letter, marked in evidence, is addressed to J.A.L. at her Toms River address and clearly advises her of her right to appeal the rule out and the right to contact DYFS if her circumstances change.
The court acknowledged and credited R.L. for his pursuit of classes to better himself while in jail. The court examined R.L.'s plan for the children upon his release. The court stated:
He's not seeking according to his testimony any immediate reunification. He indicated that he would buy or rent a home. He would go back to work for the family construction company. He would phase in contact with the children. He indicated that he didn't want to see the children hurt by an immediate removal from the foster parents. The children have been in DYFS custody for a considerable period of time.
The Court feels and finds that [R.L.'s] plan is unrealistic. We don't know when he's going to be released from jail. The children have been placed virtually since birth. They have no relationship of any sort with their father . . . per the testimony. They've been the current foster parents for more than one and one half years, they're bonded with the foster parents, they're not bonded with the defendant/father. The children need permanency. The plan proposed by [R.L.] only delays permanency working to the detriment of the two children. R.L. last saw S.A.L. in March of '05. He's never really seen other than for evaluations [L.R.] The defendant's criminal history, the reason that he's currently incarcerated, statutory rape of a 13-year-old when he was about 40 or 41 years old poses both of the children to the risk of harm. The Court is not satisfied that he is capable of parenting these two children and he did note that he did not want [L.A.R.'s] family in New York to have custody of these children.
There were multiple children [of R.L.] who testified on behalf of [R.L.] J.A.L. was ruled out. D.L. testified that she would take custody of the children, but my observations of her were that she was very reluctant. She didn't want to offend [R.L.] who was then sitting in the courtroom during the course of her testimony. She is the daughter who basically was the mother of the family after [R.L.'s] wife abandoned the family. She graduated high school and immediately fled to South Carolina. She described herself as being the mother hen. She's now back here. She has a family. She indicated that she would take the children, but she indicated that it would be very, very hard. She was very reluctant and the Court doesn't feel that she was sincere with regard to her offer to take the children.
There was another child [of R.L.] that was ruled out. The Court's observation from the testimony was other than [J.A.L.] who was ruled out no other child [of R.L.] ever stepped up and requested to be a placement resource, no  child has ever seen [L.R.,] no  child has ever seen [S.A.L.] . . . since March of 2005 and that no  child has asked for any type of visitation with [L.R.] or [S.A.L.] They don't appear to the Court to be committed to taking custody of their younger siblings.
After making its preliminary findings the court then analyzed the proofs in accordance with the "best interests" standard set forth in N.J.S.A. 30:4C-15.1(a), finding that the four prongs had been satisfied by clear and convincing evidence. R.L. does not contest the court's findings as to the first prong.
As to the second prong, the court found separation from the foster parents would cause serious and enduring emotional or psychological harm to both children. Additionally, the court noted R.L.'s criminal history and his psychological issues testified to by Dr. Lee caused him to be unable to eliminate the harm facing the children or to provide them with a safe and stable home. The court found R.L.'s plan for reunification would delay permanency for the children.
As to the third prong, the court found DYFS had made reasonable efforts to provide services to help correct the circumstances of removal and that the court had considered alternatives to termination of parental rights. R.L. was offered and underwent psychological and bonding evaluations and was referred to parenting classes, which he only marginally attended and did not complete because of his incarceration resulting from his guilty plea to the criminal charge, after which DYFS was unable to offer him additional services. The court determined DYFS investigated other placements for the children. They were ruled out because of safety concerns or prior DYFS histories. On the date of the court's decision after the conclusion of the trial testimony, B.M., R.L.'s sister was proposed as a possible placement for the children. The court rejected B.M. as a custodian as being offered too late. Additionally, as a result of a prior criminal history the court doubted she would qualify even if she were investigated. The court found defendant's adult children did not pose realistic options for custody of the children.
As respects the fourth prong, the court found the children did not really know their parents in view of their removal shortly after their births and their placement with their current caregivers in excess of one-and-one-half years. Evidence confirmed they are provided a loving, caring and nurturing home where they are thriving. The children would be exposed to the possibility of harm if removed. Termination will not do more harm than good. On the contrary, termination will enable the children to achieve permanency.
R.L. raises the following arguments for our consideration:
POINT I THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.
(A) UNDER THE SECOND PRONG, THE DEFENDANT CAN BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF S.A.L. AND L.R.
(B) THE DIVISION FAILED TO MAKE REASONABLE EFFORTS UNDER THE THIRD PRONG.
(1) SINCE DEFENDANT'S PRO SE MOTIONS TO REINSTATE VISITATIONS DEMONSTRATED THAT HIS COMMITMENT TO PARENT SURVIVED HIS INCARCERATION, THE DIVISION SHOULD BE EQUITABLY STOPPED FROM ARGUING THAT IT MADE REASONABLE EFFORTS TO "ACCOMMODATE" THE NEEDS OF THE DEFENDANT.
(2) THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO PLACE S.A.L. AND L.R. WITH THE DEFENDANT'S ADULT DAUGHTER, J.L., BECAUSE APPLICATION OF THE ASFA DISQUALIFER VIOLATED THE EX POST FACTO CLAUSE OF THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS.
(C) THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" STANDARD IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Here, the record discloses there was adequate, substantial, credible evidence in the record to support the findings made by the trial judge.
Our review of the record in light of the written arguments advanced by R.L. above discloses that his contentions are without sufficient merit to warrant extensive discussion in this opinion and we affirm substantially for the reasons articulated by Judge Hoffman in his oral opinion of October 3, 2006. R. 2:11-3(e)(1)(A) and (E). We add the following.
Appellant argues that because he has completed services while in jail, in accordance with Dr. Lee's written recommendation, he can become fit to parent the girls. Dr. Lee, however, stated that he offered the recommendation of engaging in services "in an effort to try to ameliorate or perhaps mitigate" some of R.L.'s "severely problematic traits," which are not easily treated. Dr. Lee also concluded that the completion of such classes would not support R.L. being a caretaker at the time of trial or even in the foreseeable future. Defendant offered no evidence to contradict Dr. Lee's opinion. The trial court found Dr. Lee's testimony credible.
As to the issue of DYFS not granting defendant visitation with the children while incarcerated, and thus not providing him services, we agree that DYFS could have permitted visits prior to the guardianship trial. However, it is highly unlikely that in the circumstances presented here, the visitation would have resulted in a bond with the defendant in view of the limited contact of the children prior to R.L.'s incarceration.
Defendant makes an argument based on sibling rights. He argues that destruction of sibling contact is a harm under the fourth prong. However, the two full sisters are residing together in a pre-adoptive home. There are five adult half-siblings, and one minor half-sibling. The minor half-sibling was the product of the relationship between R.L. and the woman he was convicted of sexually assaulting as a minor. While the older child, S.A.L., had some contact with her adult half-siblings, L.R. had none. S.A.L.'s contacts were before she was a year old. None of those adult siblings other than J.A.L. offered their assistance at the time the children were removed from their parents. Additionally, there is no evidence in the record that R.L.'s adult children sought to initiate contact with their half-sisters during the period of their father's incarceration.
R.L. offered no expert testimony or reports to contradict the opinions of Dr. Lee who concluded that the delay of permanency would cause more harm than good. We are satisfied that the trial court's determination that the "best interest" of the children was the termination of R.L.'s parental rights enabling the children to be placed for adoption was based on adequate substantial credible evidence.
R.L. contends the trial court erred in its failure to have the girls placed with J.A.L. We disagree. N.J.S.A. 30:4C-26.8(e), which was effective March 31, 1999, precluded that placement. The statute states that a person is disqualified from being a resource family parent if s/he or any adult residing in that household was convicted of one of several enumerated crimes, including drug-related crimes, and the date of release from confinement occurred during the proceeding five years. "Date of release from confinement" means "the date of termination of court-ordered supervision through probation, parole, or residence in a correctional facility, whichever date occurs last." N.J.S.A. 30:4C-28.6c (emphasis added). J.L.'s boyfriend was convicted of an offense in mid-March 2000, and received ISP; presumably this took some time to complete. Therefore, when J.L. was ruled out in early March 2005, the five-year period had not run. Moreover, J.L. did not appeal the rule-out letter nor seek to qualify herself again when the statutory proscription had ended.
We are also convinced the trial court did not utilize an impermissible "better interests" test, in reaching its conclusion. A review of the record shows that the court carefully followed the criteria set forth in A.W. and N.J.S.A. 30:4C-15.1 in rendering its decision.