On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-63-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2007
Before Judges S.L. Reisner and Baxter.
Defendant J.E. appeals from the October 31, 2006 order of the trial court terminating his parental rights to his son N.E. and his daughter C.E., and placing both in the guardianship of the Division of Youth and Family Services (DYFS) for eventual adoption.
We conclude that the proofs presented by DYFS demonstrate by clear and convincing evidence that, by virtue of J.E.'s chronic homelessness, inability to maintain consistent employment, repeated incarceration for crimes, and protracted absence from his children's lives, these children's health and development will be severely impaired by J.E.'s deficits as a parent, and that he is unable or unwilling to eliminate the harm facing his children. The proofs also amply demonstrate that although DYFS provided extensive and ongoing services to J.E., his use of those services was sporadic and indifferent; that DYFS investigated numerous relatives as alternatives to termination of parental rights, but none was suitable; and that allowing both children to be adopted would not cause more harm than good. We affirm the termination of J.E.'s parental rights to both children.*fn1
N.E. was born on November 21, 2002, and has never lived with his father J.E. DYFS's involvement with N.E.'s mother T.P. began on February 19, 2003, following a referral alleging that T.P. had an alcohol problem and at the end of the month, would be evicted from the publicly-funded shelter in which she lived.
Three months after DYFS began providing services and supervision to T.P., the assigned caseworker met with J.E. for the first time on May 20, 2003. At this time, J.E. admitted that he was unemployed and had no source of income, but claimed that he was able to survive because various paramours gave him money. Two months after his May 20, 2003 meeting with DYFS, J.E. was still homeless and living with friends.
On August 8, 2003, after T.P. herself had been arrested on a charge of violation of probation, the court awarded DYFS legal custody of N.E. and granted its request to place N.E. with M.C.P., a maternal great-aunt. Other than a three-month period between February and May 2005, N.E. has lived with M.C.P. his entire life.
On August 11, 2003, three days after physical custody of N.E. was given to the maternal great-aunt, J.E. was arrested and incarcerated on a criminal charge of terroristic threats, and was released nine days later after posting bail. Neither T.P. nor J.E. attended an August 27, 2003 compliance review hearing, at which the judge ordered that N.E. continue in the custody, care and supervision of DYFS and that J.E. submit to psychological evaluations, comply with all resulting treatment recommendations and submit to random urine screenings.
On September 11, 2003, Victor M. Solomon, Ph.D., conducted the court-ordered psychological evaluation of J.E. Solomon reported that J.E. should not be permitted to have custody of N.E., but should be re-assessed in six months after J.E. had completed substance abuse treatment and provided random urine samples. Solomon further recommended that J.E. engage in individual psycho-therapy. At DYFS's request, J.E. was ordered to telephone the DYFS caseworker every Monday at 2:00 p.m. and she provided him with a toll-free number for that purpose. He never called.
At the compliance review hearing on October 8, 2003, J.E. stipulated both to being homeless, and unwilling and unable to provide for his son. His living arrangements alternated between living with a cousin, a brother, his mother and various hotels. He had no permanent address or telephone number, slept at a different place every night and was unemployed. In addition, J.E.'s failure to maintain weekly telephone contact with the DYFS worker continued. As a result, the judge ordered that N.E. continue under the custody, care and supervision of DYFS and that he remain in the physical custody of the maternal great-aunt. The judge granted J.E. visitation with his son, to be supervised by DYFS. The judge further ordered that J.E. complete a substance abuse evaluation, submit to random urine screenings and attend counseling.
As a result of the October compliance review, DYFS referred J.E. to the Audrey Hepburn Children's House (Children's House) for therapy. After attending his first session in January 2004, J.E. failed to attend any of the next seven sessions, despite being provided with a free bus pass for six of them. The Children's House caseworker attempted to contact J.E. by letter, and after receiving no response, discharged J.E. from the individual therapy program.
Although DYFS also made arrangements for J.E. to visit with his son at its offices, J.E. was as indifferent to visiting with his son as he had been to receiving therapy at the Children's House. J.E.'s visitation with his son was scheduled once per week, but J.E. missed more visits than he attended. The DYFS caseworker was unsure how many visits J.E. actually kept, but testified that he failed to appear for approximately ten scheduled visits.
J.E. offered various reasons for missing the scheduled visitation, including theft of the overcoat that contained the visitation information, having to visit relatives in Georgia, oversleeping and conflicts with his work schedule. As to his work schedule, the record demonstrates that J.E. only worked for a brief period in the fall of 2003, and even though DYFS rearranged J.E.'s visitation with his son to accommodate that work schedule, J.E. nonetheless repeatedly missed his visitation and never called the DYFS caseworker to tell her that he was unable to be present. Consequently, at DYFS's request, the court suspended J.E.'s visits with his son because DYFS was needlessly expending effort to pick N.E. up at daycare, bring him to its office and then return him to daycare after J.E. failed to show up.
Although the court had suspended visitation, DYFS sent a letter to J.E. on December 10, 2003, explaining that it would provide visits with his son if he presented himself at the regional DYFS office first and then waited while DYFS retrieved N.E. from daycare. Despite DYFS's effort to accommodate him in that fashion, J.E. failed to avail himself of any visits with his son for several months, at which time DYFS lost all contact with J.E. and did not know where he was. DYFS sent letters to J.E. at his last known address in an attempt to contact him, but received no response. Later that year, in September 2004, J.E. presented himself at the DYFS office claiming that he had been in and out of jail over the past few months for failure to pay child support and fines, and for disorderly conduct. Because J.E. had not seen his son in more than a year, the caseworker informed J.E. that unless he attended therapy sessions and submitted to random urine screening, he would not be permitted any contact with his son. The worker provided him with the address and telephone number of CompCare in Hackensack and directed him to call that agency in order to set up individual therapy. He never did so.
Nonetheless, DYFS agreed to arrange a visit for J.E. with his son on November 5, 2004, which J.E. attended. At the time of that session, J.E. had not seen his son for fifteen months, and N.E. did not recognize him. Every time the DYFS worker tried to leave the room, N.E. followed her out into the hallway rather than remain alone in the room with his father.
When asked by the worker during that session whether he had started to attend CompCare, J.E. commented that he did not understand why he had to attend such sessions. He also mentioned the possibility of his mother assuming custody of N.E., but he did not have an address for her. DYFS sent letters to J.E.'s mother at two addresses that were in the file, but the caseworker never received a response. Following the November 5, 2004 visit, DYFS left repeated messages for J.E. at his job to ascertain whether J.E. had made the appointments at CompCare and to remind him to report for a urine test. J.E. never responded to those messages, nor did he ever reply to any messages left with his uncle, who reported that J.E. only stayed with him a few nights at a time.
DYFS continued its efforts to find J.E. Through the efforts of the Department of Human Services police, DYFS learned that J.E. was incarcerated in the Bergen County jail following a January 25, 2005 arrest for theft, violation of probation and failure to pay child support.
Ten days before J.E.'s January 25, 2005 arrest, T.P. gave birth to J.E.'s second child, his daughter C.E. On January 27, 2005, the court granted DYFS supervision of C.E. with physical custody remaining with T.P. The court, however, barred J.E. from T.P.'s apartment. The judge further ordered that any future visits between J.E. and his children were to be supervised by the Pennsylvania Child Protective Services office, T.P. having moved to Pennsylvania to live with her grandmother. On February 10, 2005, DYFS reunited N.E. with his mother in Pennsylvania, but on May 19, 2005, the judge ordered both children removed from T.P.'s home because of her two recent positive urine screens for marijuana. The children were then placed back with the maternal great-aunt.
When T.P. continued to remain non-compliant with court-ordered drug treatment, DYFS began to evaluate possible placements for both children, in addition to the maternal great-aunt. Other possible placements included J.E.'s mother as well as four other relatives. J.E.'s mother never responded, nor did two of the relatives. A third was ruled out due to insufficient space at her home, and the fourth was found unsuitable by Luzerne County Children and Youth in Pennsylvania.
Ultimately, J.E. was convicted of the charges that led to his January 25, 2005 arrest, and was confined to state prison. He remained there until November 28, 2005, when he was returned to the Bergen County Jail on an outstanding domestic violence warrant. When DYFS learned that J.E. had been returned to the Bergen County jail, the worker visited him on December 9, 2005 to discuss his plans after he was released from custody. J.E. assured her that he would find a job and comply with DYFS's requests, after which he was instructed to contact the worker immediately upon release.
Although released on December 22, 2005, J.E. made no contact with DYFS until February 2, 2006. When the DYFS caseworker reiterated that he needed to complete the court-ordered substance abuse evaluation, J.E. agreed to make arrangements to do so, but never did. Some three weeks later, on February 27, 2006, J.E. again visited the DYFS office, at which time the worker confronted him about his failure to complete the court-ordered bonding and psychological evaluation despite his release from custody more than two months earlier. After missing ...