August 30, 2007
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.Q.J., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-82-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2007
Before Judges R.B. Coleman and Sapp-Peterson.
This matter is before the court on an appeal by T.O. from a judgment of the Superior Court, Chancery Division, Family Part, entered on October 4, 2006, terminating his parental rights to his biological child A.Q.J., born July 12, 2002, and granting guardianship of A.Q.J. to the Division of Youth and Family Services (Division).*fn1 We affirm.
On the morning of September 10, 2002, T.O spoke with S.J, A.Q.J.'s biological mother, who asked T.O. to watch A.Q.J. that day. T.O. agreed to do so but fell asleep and did not hear S.J. when she arrived. S.J. left A.Q.J. on what she thought was T.O.'s porch, but it turned out to be a neighbor's porch. When T.O.'s neighbor found A.Q.J. on the porch, she contacted the local police, who took A.Q.J. to a nearby hospital, where hospital staff reported that he was in good condition.
T.O. learned that his son had been taken to the hospital after police came by his apartment with photographs of A.Q.J. seeking information. T.O. did not tell police that he was A.Q.J.'s father or go to the hospital because he had outstanding arrest warrants and "he didn't feel like going to jail."
However, T.O. contacted S.J. to tell her to go to the hospital to identify A.Q.J. in order to avoid legal consequences.
Police contacted the Division and A.Q.J. was placed in foster care. On September 11, 2002, the Division filed an Order to Show Cause and a Verified Complaint for the protection and best interests of A.Q.J. At that hearing, the court continued A.Q.J.'s foster placement. On September 16, 2002, the Division notified T.O. of the process which would lead to the Division obtaining legal custody of A.Q.J. T.O. appeared in court on September 26, 2002, the return date of the Division's order to show cause, at which time T.O., according to Division records, did not seek custody of A.Q.J.*fn2
On October 28, 2002, T.O. attended a pretrial conference during which the court ordered that T.O. undergo a psychological and substance abuse evaluation. T.O. refused to submit to a urine screen. He failed to appear for the December 16, 2002 hearing and, during this period, he also refused, for a second time, to undergo a urine screen. The court drew a negative inference and suspended T.O.'s visitation with A.Q.J. until he complied with the court-ordered evaluation. Thereafter, T.O. had no further contact with A.Q.J. for more than one year, nor did he attempt to comply with the court's orders by contacting the Division, which continued to send letters to him about the case. On August 20, 2004, T.O. made an unannounced visit to the
Division office. He expressed a desire to resume visitation with A.Q.J. and indicated his willingness to cooperate with the Division. On December 11, 2004, T.O. commenced serving a prison sentence arising out of his 2003 conviction for selling marijuana. He served a little more than eleven months. He did not correspond with the Division during this period.
On February 14, 2005, the Division filed an Order to Show Cause and Complaint for Guardianship, ordering S.J. and T.O. to show cause why the court should not enter an order terminating their parental rights to A.Q.J. and directing them to disclose to the Division any relatives they believed could potentially serve as caretakers for A.Q.J.
On May 11, 2005, a caseworker visited T.O at the Monmouth County Jail, where he was serving his sentence. T.O. acknowledged that he was not, at that time, able to care for A.Q.J. but provided the names of five relatives who he thought could serve as caretakers. Of the five persons T.O. identified, three were ruled out as potential caretakers because they did not respond to the Division's efforts to contact them. The fourth person, a relative, indicated that she was not interested in serving as A.Q.J.'s caretaker. The fifth person T.O. identified was his paramour. The Division's investigation revealed that she was interested in serving as a caretaker. At the time, however, she was unemployed, receiving welfare for T.O.'s three other children, and her home had limited space. She was therefore rejected as a caretaker.
The Division retained Dr. Chester Sigafoos to conduct a psychological and bonding evaluations. As a result of the psychological evaluation, Dr. Sigafoos concluded that
[T.O.] does not have the capacity to safely insure a child's welfare. He definitely shows the characteristics of an antisocial personality disorder. He also has histrionic traits in which he draws attention to himself, and that's one way of trying to then experience this enhancement in self worth.
But he also shows the obsessive compulsive personality features. And that's of concern because when you start to see that particular type of character disorder, these are individuals that have addictive personalities. He might not be the active abuser of substances now, but the underlying issue of an addiction-prone personality is present.
When I saw him, he was also showing some adjustment disorder with the anxiety and depressive feature, but that could be secondary to his incarceration.
In so far as the bonding evaluation, Dr. Sigafoos found that there was no bonding between T.O. and A.Q.J. He concluded that if A.Q.J. was separated from his foster parents, he would suffer a grief and separation reaction.
A defense psychological evaluation and bonding evaluation was conducted on August 4, 2005 by Dr. David F. Bogacki. In the psychological evaluation, Dr. Bogacki found (1) T.O.'s personality traits were marked by "histrionic traits" and (2) a strong need to be the center of attention. He also found evidence of both narcissistic as well as antisocial traits. The results of the bonding evaluation revealed "no emotional attachment, recognition or any other degree of familiarity of the child with [T.O.]."
T.O. was released from jail on November 25, 2005. The termination of parental rights trial was held on January 17, 2006, resulting in a denial of the Division's petition. The court was not satisfied that the Division had satisfied the requirements for termination of parental rights. The court stated:
As to the defendant [T.O.] . . . I think that he has been an unfit parent. I think he has been an absentee father. I think he has not done anything to form a bond with his child. I think he has been quick with one-liners and used machismo in order to avoid the most basic concerns that the Division has had in order to insure his visitation. However, I do not find, even though I find that personally reprehensible, I do not find that it rises to the level so that his parental rights should be terminated.
The court continued to suspend T.O.'s visitation with A.Q.J. "until he abide[d] by the earlier directives of [the] Division which the Court [found] to be eminently reasonable even though he [did] not." On May 11, 2006, T.O. underwent a drug screen, which was negative. He also indicated that his parents were willing to allow him and A.Q.J. to live with them while he sought appropriate housing.
T.O. failed to appear for the next two drug screens but did submit to a drug evaluation on July 17, 2006, and expressed his desire to resume visitation with A.Q.J. T.O. had two supervised visitations with A.Q.J. in August 2006. He also registered for parenting classes.
The second guardianship trial occurred on September 27, 2006. At that time, S.J. voluntarily surrendered her parental rights in favor of A.Q.J.'s foster mother, with whom A.Q.J. had resided since September 2002. The trial judge entered an order terminating T.O.'s rights on October 4, 2006. In a comprehensive written opinion issued on that same date, Judge Guadagno found:
Under the first prong, that the safety, health and development of [A.Q.J.] has been or will continue to be endangered by the parental relationship, the court's finding at the conclusion of Trial I, that DYFS proved this element by clear and convincing evidence as to both defendants, has not been challenged or even addressed in this trial. although the court found that [T.O.'s] conduct on September 10, 2002, was not as serious as [S.J.'s] conduct in leaving the child alone on the step, he must share in the responsibility for [A.Q.J.'s] plight. After agreeing to care for [A.Q.J.] while [S.J.] took her daughter to the dentist, he turned his cell phone off and fell back asleep, knowing that she was on her way over with the child. When he awoke and realized that [the] child was not there, he made no inquiries as to the child's whereabouts. When the police canvassed the neighborhood and he was shown a picture of [A.Q.J.], he failed to inform the police of the child's identity. Similarly, when questioned by the county prosecutor he lied about where he was that morning. Finally, when he learned that [A.Q.J.] was in the hospital he failed to respond out of fear that he might suffer some personal consequences. [T.O.'s] conduct on September 10, 2002 amounts to forsaking his parental duty to care for and protect [A.Q.J.] But the evidence supporting the first prong goes far beyond [T.O.'s] conduct on September 10, 2002. For the first four years of [A.Q.J.'s] life, [T.O.'s] has been a complete stranger to his son. Although [T.O.] has seen [A.Q.J.] on a few occasions, he has no relationship with his son and although [A.Q.J.] might know that [T.O.] is his biological father, he does not regard him as his actual father.
In analyzing the second prong, the court must focus on whether DYFS has proved that [T.O.] is unwilling or unable to eliminate the harm facing [A.Q.J.] or is unable or unwilling to provide a safe and stable home for him as well as whether the delay of permanent placement will add to the harm. Such harm may include evidence that separating [A.Q.J.] from his foster parents would cause serious and enduring emotional or psychological harm to him.
It is undisputed that [A.Q.J.] is thriving in the care of his foster parents. DYFS caseworkers have visited the foster mother's home regularly since his placement and have observed a happy, well adjusted child who has bonded strongly with his foster parents. Moreover, [A.Q.J.] is a child with special needs that are being addressed by the foster parents. He is in a preschool handicapped program due to his speech delay [and] fine motor skills problems and has made substantial progress.
[T.O.] has made no effort to provide a home for [A.Q.J.] or, for that matter, any of his other eight children. He supports only a few of his children and only when compelled to do so by court order. He resides with his parents in their one bedroom apartment and sleeps on their couch. His "plans" for [A.Q.J.] are vague and without substance, claiming he will seek housing if he is awarded custody of [A.Q.J.]. The court has no confidence that [T.O.] will provide any better for [A.Q.J.] than he has done for any of his other children.
The court accepts the conclusions of Drs. Beekman and Sollitto and finds that the evidence is compelling that [A.Q.J.] is strongly bonded to his foster parents and not at all to his natural father.
The court finds that Dr. Bogacki's opinion that [T.O.] could become a good parent if certain conditions are met, is not particularly helpful. First, Dr. Bogacki does not address why [T.O.] went for almost four years with no contact with [A.Q.J.] or why he repeatedly refused to comply with court orders that were initially directed at reunifying him with his son. Nor does he even address the eight other children [T.O.] has fathered and is not living with.
To prove the third prong the Division must show that they have made reasonable efforts to provide services to help [T.O.] correct the circumstances which led to the child's placement outside the home and that the court has considered alternatives to termination of parental rights.
While DYFS provided a plethora of services to [S.J.], [T.O.] refused each and every service offered to him. He defied three court Orders to submit to urine screens as well as Orders that he submit to psychological and substance abuse evaluations. Considering [T.O.'s] criminal history, including incarceration along with his lengthy and consistent pattern of drug abuse, it is clear that his refusal to participate with any services shows that he is unwilling and unable to eliminate the harm facing the child and ultimately can not provide a safe and stable home for him.
Here, the failure of reunification between [T.O.] and [A.Q.J.] is not a reflection on anything DYFS did or did not do but to [T.O.'s] complete refusal to participate in any way in the services DYFS was prepared to offer.
Regarding the fourth prong, the court finds that [A.Q.J.] would be traumatized far more by removal from his foster parents' home than if his relationship with [T.O.] was severed. It is conceded by [T.O.] that he has no bond with [A.Q.J.] In addition, the court finds that the foster parents have provided the emotional stability to [A.Q.J.] that the defendant has shown no desire or ability to provide.
After [A.Q.J.] was placed in foster care, [T.O.] saw him once during the next four years. Leaving the custody and nurturing of his child to foster parents was in derogation of [T.O.'s] responsibilities as a parent.
In conclusion, there was clear and convincing evidence to support a finding of harm that endangered the health and development of [A.Q.J.]. See N.J.S.A. 30:4C-15.1(a)(1). There was also ample evidence that [T.O.] was unable or unwilling to provide a safe and stable home for him and that a delay in permanent placement will add to the harm he has already suffered. See N.J.S.A. 30:4C-15.1(a)(2). There was sufficient evidence that termination of parental rights will not do [A.Q.J.] more harm than good. See N.J.S.A. 30:4C-15.1(a)(4). Finally, the court finds that DYFS engaged in diligent efforts to reunite [A.Q.J.] and his biological father. See N.J.S.A. 30:4C-15.1(a)(3).
This appeal followed. Defendant presents the following points for our consideration:
THE TRIAL COURT'S DETERMINATION THAT THE DIVISION OF YOUTH AND FAMILY SERVICES HAD PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN THE BEST INTERESTS OF A.[Q.]J. TO TERMINATE T.O.'S PARENTAL RIGHTS PURSUANT TO N.J.S.A. 30:4C-15.1(a) WAS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
A. THE TRIAL COURT ERRED IN FINDING THAT DYFS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE HEALTH AND DEVELOPMENT OF A.[Q.]J. WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH T.O.
B. THE TRIAL COURT ERRED IN FINDING THAT DYFS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT T.O. IS UNWILLING OR UNABLE TO ELIMINATE THE ALLEGED HARM TO A.[Q.]J. AND THAT THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM.
C. THE TRIAL COURT ERRED IN FINDING THAT DYFS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT REASONABLE EFFORTS WERE MADE TO PROVIDE SERVICES TO HELP T.O. CORRECT THE CIRCUMSTANCES WHICH LED TO THE PLACEMENT OF A.[Q.]J. INTO FOSTER CARE AND THAT THERE WERE NO ALTERNATIVES TO THE TERMINATION OF PARENTAL RIGHTS.
D. THE TRIAL COURT ERRED BY FINDING THAT DYFS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF T.O.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD TO A.[Q.]J.
Defendant contends the Division failed to prove, by clear and convincing evidence, that it was in the best interests of A.Q.J. to terminate T.O.'s parental rights. Defendant urges that the Division failed to meet any of the statutory requirements for terminating parental rights by clear and convincing evidence.
Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Any decision to terminate parental rights requires consideration of the four-part "best interest of the child" standard first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), now codified in N.J.S.A. 30:4C-15.1.
The statute provides:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . if the following standards are met:
(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).]
The four statutory criteria "are not discrete and separate[.]" In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.
Judicial determinations of whether the Division has satisfied the statutory prerequisites to termination of parental rights are fact sensitive. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005). For the trial judge, who sits as the fact finder, this process involves assessing credibility, which means that the trial judge must sift through the evidence presented, evaluate the demeanor of the witnesses under both direct and cross examination, consider any potential bias or prejudice of the witnesses, and then arrive at a determination of whether the Division, by clear and convincing evidence, has met the four-part test. See N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 274-76 (2004).
On appeal, the factual findings and conclusions of the trial judge are generally given deference, especially "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As a reviewing court, our task is not to disturb the "factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
We have considered the arguments advanced on appeal in light of the record and, for the reasons stated by Judge Guadadgno in his comprehensive written decision of October 4, 2006, we conclude that the evidence clearly and convincingly establishes that the best interests of A.Q.J., when assessed under the statutory standards set forth in N.J.S.A. 30:4C-15.1(a), warrant termination of T.O.'s parental rights. See In re Guardianship of K.H.O., supra, 161 N.J. at 348.