January 17, 2008
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.Z.S., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-134-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendant O.O., the biological father of N.Z.S. (fictitiously, Nate), appeals from an order terminating his parental rights to his son, now four and one-half years of age, with whom he has never had any relationship.*fn1 In his appeal, the father makes the following arguments:
THE FOUR PRONGS OF THE 'BEST INTEREST TEST' WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT'S "ABANDONMENT" AND INCARCERATIONS CONSTITUTED "HARM" UNDER THE FIRST PRONG AND "UNFITNESS" UNDER THE SECOND PRONG.
(B) THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO THE DEFENDANT UNDER THE THIRD PRONG.
(C) THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION CLEARLY AND CONVINCINGLY ESTABLISHED THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
After consideration of O.O.'s arguments in light of the record in the matter and applicable case law, we affirm.
The following basically-uncontested facts are relevant to our decision. Nate was born on August 9, 2003. He was placed on social hold shortly after his birth as the result of his mother's history of involvement with the Division of Youth and Family Services (DYFS), stemming from her addiction to drugs and alcohol, and was not discharged to her care. Instead, on August 14, 2003, DYFS filed a verified complaint seeking an order to show cause why it should not obtain custody of the child. In its complaint, O.O. was named as the father of the child. Custody was granted to DYFS.
On October 8, 2003, Nate was discharged from the hospital into the care of a foster family. On September 10, 2004, at one year of age, Nate was placed with his current foster father, who seeks to adopt him.
At the time of Nate's birth, his mother identified O.O. to DYFS as the child's biological father, provided DYFS with contact information, and stated that the father was aware of the pregnancy. O.O. was notified of and appeared at a Family Part hearing conducted on September 17, 2003. At that time, O.O. acknowledged to DYFS that he was Nate's father, but he demanded a confirmatory paternity test, which was ordered to take place. Additionally, O.O. stated to the DYFS worker present at the hearing that he planned for the child to live with him, but that his mother, presently residing in Toronto, would come to the United States to serve as his back-up care giver. DYFS requested that O.O. provide identifying information regarding his mother upon her arrival in this country so that a background check could be completed.
A paternity test was arranged by DYFS for October 21, 2003, and its date was confirmed with O.O. by telephone calls to his workplace and by a letter to his home address. However, O.O. did not appear for the test and did not call DYFS to reschedule it. Despite efforts to reschedule the appointment and to inform O.O. of the new date through messages left with his employer and letters to his last known address, O.O. did not respond. Nor did he seek information regarding Nate. Further, O.O. failed to provide DYFS with any of the information that it had requested regarding his mother.
DYFS initiated a search for O.O. in October 2004, and although they located a relative who agreed to aid in the agency's efforts, conducting a family meeting to locate him, O.O.'s location was not provided. Postal and driver's license checks confirmed the address that O.O. had initially given to the DYFS worker in September 2003.
In November 2003, O.O. was incarcerated on charges of second-degree aggravated assault and first-degree robbery, and he did not make bail until December 24, 2004. He remained free on bail until pleading guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), on October 26, 2005, at which point he was returned to custody. He was sentenced on February 10, 2006 to five years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He remains incarcerated.
On March 31, 2005, while free on bail, O.O. contacted the Division, but refused to provide residence information until a paternity test had confirmed that he was the father of Nate. A DNA sample was collected on April 26, 2005, and results confirming that he was the child's father were received on May 17, 2005. O.O. did not appear at a court hearing in the matter, conducted on May 16, 2005, despite knowledge of the hearing date, stating to a DYFS worker that he did not wish to attend court proceedings until his paternity was confirmed.
After O.O. obtained confirmation of his status, almost two years after Nate's birth, O.O. again expressed an interest in either taking custody of Nate or having him placed with his mother. However, DYFS rejected the former alternative because of O.O.'s pending criminal charges. Additionally, it conditioned any visitation by O.O. upon his completion of a psychological evaluation. Because O.O.'s mother remained in Canada and no contact information was provided, placement with her was not feasible.
The Division scheduled O.O.'s psychological evaluation for July 29, 2005, but was unable to notify him of the appointment, because its letter to him, addressed to the residence that he had provided in 2003, was returned unclaimed. A further appointment for an evaluation was scheduled for August 19, 2005, but O.O. declined to attend, stating that it conflicted with a class that he could not miss. O.O. did not seek to reschedule the evaluation, and it did not take place until May 3, 2006 while O.O. was in custody.
The May 2006 evaluation was conducted by psychologist Andrew Brown, III. At the time that the evaluation occurred, O.O. stated that he was divorced and was the biological father of three other children. Although he saw them, he had not met Nate. O.O. professed scant knowledge with respect to the reasons why Nate had been removed from his mother's care, denying her drug use and acknowledging that she "drinks," but denying that she became intoxicated. O.O. reported to the doctor that he was a native of Nigeria; that he had a bachelor's degree in biology from Rutgers; was employed in a chemical laboratory, as a substitute teacher, and as a cab driver; and that he was preparing to attend medical school before his arrest for aggravated assault and robbery. He claimed that this was the first time that he had ever been incarcerated, that it was his first arrest, and his first legal difficulty. He stated that the charges arose from a disagreement at the gas pump with an attendant that escalated and, after he was spat upon, resulted in a physical encounter. O.O. suggested further "that he had inadequate legal representation and because he did not accept a plea bargain; 'because of my pride' he received the present sentence."
Following an interview and the administration of psychological assessment tests, Dr. Brown gave the opinion that O.O. had no evidence of psychopathology or aberrant personality functioning. The doctor stated that O.O. reported "feasible plans involving continuing his education, saving money, and securing employment which will support the needs of his son." Additionally, the doctor stated that O.O. did not present with a reported history of anti-social activity, or give any indications of such in the assessments administered during the examination. The doctor concluded that O.O.'s psychological assessment was "consistent with the impression that the apparent rage reaction exhibited by [O.O.] that resulted in his present legal disposition is 'out of his character'" and the result of "a single episode of disinhibited anger." No evidence suggested to Dr. Brown that O.O. was "at risk to endanger the welfare of his children." However, anger management classes were recommended.
O.O. did not disclose to Dr. Brown that he had been arrested for simple assault and false imprisonment in connection with an episode of alleged domestic violence in 1998, although the charges were later dismissed. O.O. also misrepresented the facts when he suggested to the doctor that he had gone to trial on the aggravated assault and robbery charges, when in fact he had pled guilty to second-degree aggravated assault. Additionally, he misrepresented when he became aware that he was Nate's father, stating he learned that fact in 2005, when in fact he was aware of and acknowledged the likelihood of his status shortly after the child's birth in 2003.
At trial, which commenced on May 30, 2006 and concluded on September 8, 2006 after five days of testimony, Dr. Brown testified that, as the result of O.O.'s nondisclosure of his prior arrest record and his plea to aggravated assault, he believed that the examination had been manipulated and that he could no longer conclude that O.O.'s conviction for aggravated assault constituted one incident of disinhibited anger. When the doctor then testified that O.O.'s true history, combined with his unruly behavior at trial, suggested "some pressing anger management issues," O.O. interrupted the doctor's testimony by stating: "I'm real cross." The doctor then continued by stating that O.O.'s behavior raised concerns regarding his ability to parent, and occasioned a further recommendation that O.O. attend anger management counseling. However, in light of O.O.'s history of failure to appear for scheduled paternity and psychological testing, the doctor could not conclude that O.O. would be compliant with the directive to seek anger management. The fact, disclosed at trial, that O.O. had told Nate's mother to obtain an abortion suggested to the doctor that O.O. was not really committed to the welfare or care of his child.
Dr. Brown further admitted that O.O. could not parent his child while imprisoned and that, in light of the information revealed to him, it was highly questionable whether O.O. would be able to engage in appropriate parenting behaviors or execute parenting obligations and responsibilities once released. Further, the doctor found it unlikely that, upon O.O.'s release from prison, there would be any parental bond between him and Nate.
Evidence was also presented at trial of two evaluations of the bonding between Nate and his foster father, conducted by Dr. Elaine Weitz on March 4, 2005 and again on January 13, 2006 when Nate was two years and five months old. As the result of those evaluations, Dr. Weitz concluded that the foster father had gradually become Nate's psychological parent, and that a "very strong" bond between the two existed. Dr. Weitz testified further that if the bond were broken, Nate would regress in his toilet skills and still nascent language development, and that the effect of the loss upon him, particularly at his age, would be devastating. From what the doctor understood from reading the report of Dr. Brown, Dr. Weitz was of the opinion that O.O. would not be able to mitigate the harm. Even if O.O. were immediately released from custody, Dr. Weitz testified that the development of a relationship between him and Nate would be difficult. She testified:
If the birth parent had known this child all along and had developed a relationship and the child could easily transition into the home, that would be another story. But biological ties alone don't make for a bond between a child and a parent and as I said, [Nate] would not understand what was happening. He would be traumatized, he would be terrorized, he would just feel --he would not understand what was happening and . . . my guess is [he] would cry and scream and kick and fight and withdraw and not allow anyone, I mean, it's not, you know, who the biological father is, it's really anybody at this point [who would] step inside his psychological parent['s] shoes and take care of him at this point. It would be a very long process for it to ever be successful, it would require a hundred percent attention in staying with this child full-time, completely devoting oneself to this child and even then I'm not sure [Nate] would allow a bond to take place.
I don't see how he would emotionally survive somebody strange coming into the picture to take care of him.
O.O. offered no experts to contradict this view.
In an opinion placed on the record on October 6, 2006, the Family Part judge concluded that the State had established by clear and convincing evidence the four factors comprising the best interests of the child standard set forth in N.J.S.A. 30:4C-15.1 in this case, and that an order terminating the parental rights of O.O. and granting guardianship to DYFS was warranted. In support of his decision, the judge noted that O.O. knew from the outset that he was likely the father of Nate and that the matter was in litigation. The judge found that, despite the willingness of DYFS to work toward a plan for unification, O.O. "withheld his participation with respect to his son" for two years until the results of the paternity test were received. In the interim, O.O. failed, in part, as the result of his repeated incarcerations, to keep in contact with DYFS and failed to follow through in obtaining the DNA testing that he had demanded. Although O.O. came to court on June 13, 2005 and offered himself or his mother as caregivers, O.O never provided any contact information regarding his family, which he described as large and close. Thereafter, O.O. became unavailable as a caregiver as the result of his conviction and sentence for aggravated assault. He did not expect release from custody until "some time in 2008."
The judge further found that O.O. had purposefully avoided scheduled psychological evaluations, despite evidence that he was a resourceful, communicative person with no evident psychological difficulties. Although clearly intelligent and capable of planning for his son, O.O. had not done so, frustrating DYFS's attempts to facilitate the process and essentially abandoning his child.
On the other hand, the judge found that DYFS had successfully developed a plan for permanency for Nate that provided for his care by a foster parent who had become attuned to Nate's special needs and had assumed the role of the child's psychological parent. The judge found that the bond between the two, if severed, would "cause long and far-reaching psychological effects upon the child, one which will challenge [Nate's] ability to successfully negotiate life in a manner of which he is entitled to expect." The court thus found that it would be in Nate's best interests, in the absence of any concrete plan by O.O. or his family members for Nate's care, that he be freed for adoption by his foster father.
In deciding this appeal, we give deference to the factual findings and conclusions of the Family Part judge, as well as to his credibility determinations and his "'feel of the case' based upon his . . . opportunity to see and hear the witnesses." Division of Youth and Family Serv's v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). We will not "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.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "[T]he conclusions that logically flow from those findings of fact are, likewise, entitled to deferential consideration upon appellate review." R.L., supra, 388 N.J. Super. at 89. The Court has found that this standard of review is particularly applicable in litigation before the Family Part "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413.
In New Jersey, the standards relevant to a decision to terminate a person's parental rights are codified in the four interrelated factors of N.J.S.A. 30:4C-15.1(a), which provide a framework for establishing the best interests of the affected child. In order for termination to occur, the State must demonstrate by clear and convincing evidence that:
(1) The child's health and development have 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.
See also In the Matter of the Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999); N.J. Div. of Youth & Family Serv's v. A.W., 103 N.J. 591, 604-11 (1986).
In this case, the Family Part judge found that the first statutory factor was met by evidence of O.O.'s abandonment of Nate. That abandonment, combined with O.O.'s lengthy periods of incarceration served, in large measure, as the foundation for the judge's further conclusion that the second prong was also met.
On appeal, O.O. challenges the judge's determination that abandonment occurred, claiming that he had "always maintained a strong commitment to parent [Nate] after it was determined that he was the biological father." He argues further that because abandonment requires a "willful surrender or abdication of parental rights," the judge's finding of abandonment in the present matter lacked foundation. O.O. also argues that the judge erred when he found O.O.'s incarceration caused harm to Nate.
We cannot agree with O.O's contentions. The evidence demonstrates that O.O., while requiring DNA evidence of his fatherhood, willfully delayed obtaining a definitive determination of his status for a period of a year and one-half.
In the interim, despite knowledge of the Nate's birth and acknowledgement of the likelihood that he was the father, O.O. made no effort to contact or otherwise provide care for him. Further, during this period, O.O. made no attempts to remain in contact with DYFS, to work with it in development of a permanency plan, or to advise it either of his arrest or criminal conviction, of his imprisonment, or of reliable contact information. In these circumstances, we find it reasonable for the judge to have concluded that O.O. effectively abandoned Nate.
Even after his parenthood was confirmed, O.O. avoided the psychological examination that DYFS required as a condition precedent to initiation of efforts at unification, failing to attend scheduled appointments until such time as he was imprisoned and incapable of effectively participating in unification efforts. Further, to this day, O.O. has failed to identify to DYFS, with any specificity, the name of any family member qualified and willing to care for Nate. As the judge noted, "[w]ith regard to what should be expected as a parent, [O.O.] has failed to provide himself with behavior consistent with that which any child should expect, in terms of getting that child out of the custody of the state entity."
The facts of the matter thus resemble those in N.J. Div. of Youth & Family Serv's v. C.S., 367 N.J. Super. 76, 113-15 (App. Div.), certif. denied, 180 N.J. 456 (2004), in which we found the State's evidence that the parent had abandoned her parental responsibilities to her young child clearly and convincingly established the first two factors of the best interest test. Moreover, as in C.S., the evidence in the present case establishes without contradiction that Nate's health and welfare would now be endangered by unification with a father he has never known and with whom he has never lived. See id. at 115.
O.O. argues that the evidence at trial did not disclose his willful surrender of his parental rights. However, as the Court demonstrated in In re Adoption of Children by L.A.S., 134 N.J. 127 (1993), evidence that the parent has "engaged in a course of conduct that 'evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child'" is required for a termination of parental rights pursuant to N.J.S.A. 30:4C-15(d). Id. at 134-35 (quoting In re Guardianship of J.C., 129 N.J. 1, 17 (1992)). In contrast, a proceeding under the best interest of the child standard of N.J.S.A. 30:4C-15.1, based upon parental unfitness, requires only a "very substantial neglect of parental duties, with no reasonable expectation of any reversal of that conduct in the near future."
L.A.S., supra, 134 N.J. at 135; see also In re Guardianship of D.M.H., 161 N.J. 365, 377 (1999). This proceeding was instituted pursuant to N.J.S.A. 30:4C-15.1, and although the standard of N.J.S.A. 30:4C-15(d) has arguably been met, the evidence required by that provision is not necessary here.
The fact of O.O.'s imprisonment as the result of a conviction for second-degree aggravated assault is also evidence that the Family Part judge correctly recognized as relevant to a determination of whether O.O's parental rights should be severed. L.A.S., supra, 134 N.J. at 135. "Incarceration is regarded as probative of whether the parent is incapable of properly caring for the child or has abandoned the child." Id. at 136. Although "it is by no means settled or obvious that incarceration is so inimical to [the parental] relationship as to justify its termination as a matter of law," id. at 137, "[imprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions.'" Id. at 138. It may, as here, also serve to frustrate nurturing and the development of emotional bonds and as a "substantial obstacle to achieving permanency, security, and stability in the child's life." Id. at 139; see also J.C., supra, 129 N.J. at 26 (recognizing the need for a permanent and stable relationship with a nurturing parent figure). As the Court has observed, "once a parent is imprisoned, a relationship with one's children that was nonexistent prior to incarceration will not likely be fostered." L.A.S., supra, 134 N.J. at 139.
As Dr. Brown acknowledged, the nature of O.O.'s admitted crime, second-degree aggravated assault, when coupled with his prior arrest for domestic violence and nondisclosure of that criminal history, also bears on the issue of O.O.'s parental fitness and his potential for rehabilitation. Id. at 141-43. It is also significant that O.O. will not be released from custody until some time this year, when Nate is approximately five years old. Id. at 142-43. No evidence suggests that a parental bond, wholly absent at present, can be established successfully at that point. Nor is there any proof that, given the nature of O.O.'s prior conduct and evidence in the record of outbursts during trial, that it would be in Nate's best interest to attempt such unification, since the record lacks evidence that O.O. would be fit to assume custody over Nate at any reasonable time after release.
As we noted in C.S.:
The focus of the "best interest" test must . . . be viewed in light of amendments to N.J.S.A. 30:4C-15 which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. §§ 301, 671(a)(16), 675(5)A)(ii). Both the Federal and the New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child.
The emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditions, permanent placement to promote the child's well-being.
N.J.S.A. 30:4C-11.1; D.M.H., supra, 161 N.J. at 385; K.H.O., supra,, 161 N.J. at 357-59.
A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement. [367 N.J. Super. at 111.]
Nate, who is now approaching five, has been in foster care for his entire life. "[I]f there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his] bond with foster parents, this will satisfy N.J.S.A. 30:4C-15.1(a)(2)." K.H.O., supra, 161 N.J. at 363. That evidence is unrefuted here.
Under these circumstances, we find no error in the judge's determination both that Nate's health and development was previously endangered by O.O's total absence from his life, and that O.O. has manifested an unwillingness to eliminate the harm he has caused, or to provide a stable home for the child. Without doubt, any further delay in permanent placement will add to the harm. Accordingly, we affirm the judge's conclusion that the first two factors of the best interest test have been met.
O.O. additionally argues that DYFS did not make reasonable efforts to provide services to him, and that the judge erred in his finding to the contrary. Thus, O.O. claims, the third factor of the best interests standard, which requires evidence that DYFS made reasonable efforts to provide services to the parent in order to assist that parent in correcting the circumstances that led to the child's placement in foster care, has not been met. "Reasonable efforts" are defined as attempts by an agency authorized by the division 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. [N.J.S.A. 30:4C-15.1c.]
Efforts by DYFS to unite a family must be assessed on a case-by-case basis because "services that may address one family's needs will not be helpful to another." D.M.H., supra, 161 N.J. at 390. Further, the efforts by DYFS on behalf of a parent are not measured by their success in transforming a parent into a fit caretaker. Id. at 393. Instead, "[t]hese efforts must be assessed by the standard of adequacy in light of all the circumstances of a given case." Ibid.
The difficulty in the present matter is that O.O. thwarted the efforts of DYFS to meet the statutory requirements that we have set forth.*fn2 Although the DYFS case worker attempted to develop a plan with O.O. for services leading to unification at the September 2003 court hearing, O.O. rebuffed her efforts, declining to participate in any planning until his paternity was confirmed. Thereafter, DYFS attempted to obtain the confirmation that O.O. demanded, but he declined for almost two years to participate in this effort. Once paternity was established in May 2005 -- at a time when first- and second-degree charges for violent crimes remained pending against O.O. -- DYFS reasonably sought a psychological evaluation of O.O.'s fitness to parent before proceeding further with unification efforts. However, despite professions of interest in the child, O.O. declined to participate in such an evaluation when scheduled, claiming a timing conflict, and then failed to contact DYFS to reschedule the appointment. As the result of that lack of cooperation and O.O.'s subsequent incarceration, visitation was never commenced.*fn3 At no time did O.O. request services of DYFS, other than confirmation of his parenthood, and at no time did he cooperate with DYFS sufficiently to permit a plan to be put in place whereby services in addition to those that were provided could be identified as necessary and implemented.
This is therefore not a case in which services were withheld. It is one in which services were offered to the extent feasible, and the parent, O.O., sought no more. In these circumstances, we do not fault DYFS for any lack of diligence when it was O.O's unresponsiveness and noncompliance that caused the difficulty of which he now complains. We find no obligation on the part of DYFS to further attempt to effect an initial unification between O.O. and Nate, his abandoned son.
Moreover, we note that N.J.S.A. 30:4C-11.3 provides that, when determining whether reasonable efforts at reunification are required, "the health and safety of the child and the child's need for permanency shall be of paramount concern to the court." Here, Dr. Weitz has testified at length regarding the deleterious consequences of any attempt to unite O.O. and Nate at this late date. We thus affirm the judge's conclusion that the State's burden has been met on this prong, as well.
As a final matter, O.O. challenges the judge's conclusion that severing of the non-existent ties between him and Nate would not do more harm than good. We do not find that challenge to be credible in light of the uncontroverted evidence that O.O. has no bond with Nate, that his foster father has developed a "very strong" bond with the boy and is fully responsive to his special needs, and that Nate would be devastated by the severance of his connection with the person he now regards as his psychological parent. It is difficult for us to discern any harm that would befall Nate as the result of the severance of the parental relationship of O.O.
Accordingly, we affirm the order of the trial court.