December 27, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF L.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Sussex County, Docket No. FG-19-11-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2007
Before Judges Cuff and Lihotz.
We review an order terminating the parental rights of J.L., the father of five year old, L.B. J.L. contends that he received insufficient notice of the proceedings and the agency failed to provide sufficient services to avoid foster home placement and the eventual effort to terminate his parental rights. We affirm.
L.B. was born on January 31, 2002. At the time of her birth, J.L. was incarcerated and had been incarcerated for several weeks before her birth. T.B., the mother of L.B., was residing in Birth Haven and receiving services from the Division of Youth and Family Services (DYFS) before and after the birth of the child. T.B. took the child to see her father in the Bergen County jail once when she was a baby. L.B. and J.L. have not seen each other since that visit.
T.B. married R.R. in December 2003.*fn1 T.B. had been diagnosed as suffering bipolar disorder and obsessive compulsive disorder, and her relationship with R.R. was volatile. The marriage was marked by domestic violence incidents and substance abuse. L.B. was removed briefly from her mother's care in September 2003. Shortly thereafter, L.B. was removed from her mother's care for a month when her mother acted erratically at the DYFS office. On March 13, 2004, L.B. was removed from her mother's care and placed in the care of the maternal grandfather. At this time, J.L. had just been released from a New York correctional facility and was residing in a men's shelter. Except for a two-month period on parole, he had been continuously incarcerated from January 11, 2002 until March 11, 2004. While J.L. was on parole, a DYFS worker called and left a message with his parole officer. Neither J.L. nor his parole officer called DYFS.
On July 13, 2004, DYFS initiated a second search for J.L. On January 26, 2006, DYFS located J.L. in another New York correctional facility. DYFS learned that this second incarceration commenced on September 27, 2005. J.L. was eligible for parole in April 2007; his term expired in September 2007. Between March 2004 and September 2005, J.L. did not see or have any contact with his daughter.
In April 2004, L.B. was moved to a foster home because her maternal grandfather was no longer able to care for her. L.B. returned to her mother's care on February 7, 2005. On January 26, 2006, L.B. was removed from her mother's care a fourth time and placed in foster care. In March 2006, L.B. was placed in the foster home in which she had resided during her third removal. On May 29, 2006, L.B.'s mother died. The child remains in the foster home in which she has resided since March 2006. Throughout most of the time L.B. was moved to and from her mother's care, J.L. was incarcerated. L.B. has experienced five caregivers other than her mother in her brief life.
DYFS filed a complaint for the care, custody and supervision of L.B. on January 27, 2006. Following T.B.'s death, DYFS filed this guardianship action on July 14, 2006. J.L. has participated throughout the course of this litigation.
Prior to the commencement of the guardianship action, J.L. offered his mother D.L. as a placement for his daughter. A psychological evaluation of the paternal grandmother was conducted to determine if she was an appropriate caretaker for L.B. The evaluator expressed concerns about her transient lifestyle, her possible instability, and her inconsistent employment history. The evaluator also expressed concerns about the paternal grandmother's ability to emotionally and financially support her granddaughter. When she did not cooperate in a home study, she was ruled out as a placement option for L.B.
At trial, L.B. was described as an emotionally fragile child. She had been in therapy since the death of her mother. Her therapist testified that the child's behavior started to regress a month or two after her mother's death. This regression was marked by tantrums and accidents at pre-school.
The therapist noted that L.B. has some speech delays that cause her difficulty in expressing her feelings. Her therapist testified that L.B.'s numerous placements prevented her from experiencing stability and consistency in her life. As a result, the child suffers separation anxiety in which she displays tantrums and crying when separated from her foster mother. The child has difficulty forming attachments. The therapist described L.B.'s behavior and her progress as follows:
You know, initially when we first started therapy with her, she always wanted to go see, to check in the waiting room to make sure that her foster mom was there. That checking behavior is no longer going on anymore. She wants to interact more with the foster mom and share her joys and sorrows with her. So when she's sad, she seeks out the foster mother. When she's happy and she's done something that she's proud of in therapy, she wants to bring it out to show the foster mom.
According to the therapist, L.B. knows now that "her foster mom is gonna be out there."
Nevertheless, L.B.'s therapist has concerns about the child's emotional resiliency. She noted that L.B. never had anything in her life that would make her resilient. She did not have the environmental and psychological support to bounce back from situations as quickly as someone from a stable environment. Thus, the therapist considers L.B. a fragile child who needs a good deal of structure and consistency. She also noted that as the number of placements increase, the difficulty in minimizing the emotional harm caused by separation increases. Thus, the therapist opined that severing the emotional ties with her foster family would have a significant negative impact on L.B.
The psychologist who conducted the bonding evaluation with L.B. and her foster parents concurred with the therapist's assessment. She agreed that the foster mother functions as L.B.'s psychological parent and that severance of this attachment would compromise the child's ability to attach to another caretaker. She also opined that a reunion with J.L. would be frightening to L.B. because he is a stranger to her.
J.L. attended the trial and testified telephonically from prison. He stated that he suspected that he was L.B.'s father prior to her birth and received definitive evidence of his paternity while he was imprisoned. When he was released from prison on parole in 2003, he attempted to contact T.B., but did not know where she lived. These efforts ceased when he violated parole and was returned to prison.
J.L. admitted that he did not know L.B.'s date of birth or that L.B. had been in foster care until served with the abuse and neglect complaint in January 2006. It was at that time that he offered his mother as a placement resource for L.B. When she was ruled out, he provided the name of a cousin. He also testified that his grandmother and several aunts and uncles have expressed interest in caring for L.B.
J.L. also testified that he would "get to know" L.B. when he was released from prison. He recognized that she "has a lot of trauma . . . in her life." He hoped that L.B. would meet his sisters and other family members. He knew his daughter has a speech problem and requires therapy. He stated that he believed that he could provide a safer and more stable home than her foster parents because a child should be with her biological father. He also had learned trades while incarcerated that would allow him to support himself and not re-offend. Indeed, J.L.'s grandmother's twin sister testified that she may employ J.L. as a live-in superintendent in an apartment complex she owns in Newark.
J.L. also presented the testimony of R.C., who has no blood relationship with J.L. She stated that J.L. is her sister-inlaw's sister's husband's grandson. She testified that she would like to be a long-term foster parent or to adopt a child. She would foster contact with L.B.'s biological family and could provide the child a safe and stable home.
In his oral opinion, Judge Gannon found that J.L. seemed to have a bona fide desire to be the parent of L.B. and that despite his lack of contact with her, he wants to take responsibility for the child. The judge found J.L. appreciates the challenges he faces when released from prison and has made some efforts, through family members, for the placement of the child. Additionally, J.L.'s witnesses seemed genuinely interested in L.B. and were trying to fulfill whatever familial responsibility they felt for this child. The judge also found J.L. credible with regard to the fact that J.L. has been trying to rehabilitate himself in a serious effort to improve his life when released from prison.
Ultimately, however, Judge Gannon found that he had to consider J.L.'s relationship, or lack of relationship, with L.B. over the entire course of her life. He noted that L.B. does not recognize J.L. as her father. The judge also found that this special needs child has adjusted well to her present foster family and is "very happy . . . living with her foster parents." Therefore, he concluded that DYFS had established, by clear and convincing evidence, the statutory test for terminations and entered an order terminating J.L.'s parental rights.
On appeal, defendant argues for the first time that he was not afforded due process because the State's complaint was inadequate and he was not provided proper notice of the proceedings. He also contends that DYFS did not present clear and convincing evidence to support the termination of his parental rights.
Parental rights are accorded great value but these rights are not absolute. When the State proves by clear and convincing evidence that the child's health and development have been or will be endangered by continuation of the biological relationship, parental rights may be severed. Santosky v. Kramer, 455 U.S. 745, 768-70, 102 S.Ct. 1388, 71 L.Ed. 2d 599 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346-49 (1999). The balance between the rights of the parent and the State's interest in the welfare of its youngest residents is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. This standard has been codified in N.J.S.A. 30:4C-15.1a. The four criteria are as follows:
(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 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-15.1a(1)-(4).]
See also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).
These four criteria are not discrete and separate; rather, they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests. K.H.O., supra, 161 N.J. at 348. The focus is always the harm that has occurred and will occur in the future to the child. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Review of a trial court's determination of parental rights is limited. An appellate court must uphold the factual findings of the trial court's decision if they are supported by adequate, substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Deference is also granted to the trial court's credibility determinations. Id. at 279; see In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (noting deference is given to the trial court's assessment of expert testimony in guardianship proceedings). If the focus of the appeal is the alleged error in the trial judge's evaluation of the underlying facts and the implications of those facts, then the traditional scope of review is expanded. M.M., supra, 189 N.J. at 279. However, even in those circumstances, the appellate court "will accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Here, we are satisfied that J.L.'s absence from L.B.'s life has caused her harm and prevented cessation of the harm to the child. L.B.'s mother suffered from mental illness that caused instability in her relationships, unstable housing, and intermittent employment. Her mother's mental instability and incidents of domestic violence with her boyfriend and then husband required DYFS to remove L.B. from her mother's care four times. For four years, this child was shuttled from her mother to her maternal grandfather to foster care. She was placed with four separate foster families. The need for multiple caregivers caused the child to have difficulty forming emotional attachments. The testimony of L.B.'s therapist provides a vivid illustration of a child who fears that her residence and her caregiver is subject to change in an instant.
Furthermore, the evidence presented by DYFS also established by clear and convincing evidence that termination will not do more harm than good to this child. J.L.'s desire to care for his daughter or to have others in his family care for her is admirable but too late for this child. The evidence clearly and convincingly establishes that the progress in the emotional health experienced by this child would be shattered if she was moved from her current foster family. J.L. may be her biological father, and the other persons who expressed an interest in her may be blood relatives, but to L.B. they are strangers.
Finally, DYFS also established by clear and convincing evidence that it made reasonable efforts to provide services and to explore alternatives to termination of J.L.'s parental rights. J.L. was not available to L.B. or to her mother since before the child's birth due to his incarceration. Admittedly, his incarceration made contact with T.B. and the child difficult, but the record reveals few efforts to locate them. Notably, when DYFS learned that he had been released on parole, a caseworker was able to identify J.L.'s parole officer and left a message for him. The agency received no response.
J.L. entered an appearance in January 2006 and participated throughout the termination proceedings. The agency diligently investigated the paternal grandmother's candidacy as a caregiver. We cannot fault the decision to eliminate her from consideration, particularly when she did not allow a home inspection.
This evidence also belies J.L.'s contention that he received insufficient notice of the proceedings or that the course of the termination proceedings impaired his right to preserve his parental rights. He, not DYFS, bears the burden of maintaining contact with the woman who bore his child and assuring that the child receives proper care and protection of her physical and emotional health. Incarceration complicates but does not absolve him of this responsibility. The agency made diligent efforts to locate him and to notify him of the status of his child. The record of the proceedings also demonstrates that he received a full and fair opportunity to resist the State's efforts to terminate his parental rights.