On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FG-18-105-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges Fuentes and Chambers.
Defendant J.O., the father of S.J.O., born on April 22, 2003, and M.C.O., born on March 7, 2004, appeals from the order of February 13, 2007, terminating his parental rights to these two children. The order also terminated the parental rights of L.S., the mother of these two children and an older child E.D.S., who has a different father, but she has not appealed that order. Hence, this decision will focus on the termination of J.O.'s parental rights. The Law Guardian for the children supports the termination of J.O.'s parental rights.
On June 9, 2004, the New Jersey Division of Youth and Family Services (DYFS), became involved with the family due to an anonymous call asserting that J.O. hits the children's mother and shakes the baby when it cries and that the house was "filthy." The police confirmed that they received "frequent" domestic violence calls to the house. The mother reported that on one occasion, after a fight with J.O., she went to the hospital due to blunt trauma to her chest. The oldest child, E.D.S., who was five years old at the time, told the DYFS worker that J.O. hits him and squeezes his arm, that J.O. squeezes S.J.O.'s face and sometimes shakes M.C.O., and that J.O. has punched the mother in the face. The DYFS report indicates that E.D.S. was well-dressed and healthy with no marks or bruises. S.J.O. was observed to be "well-dressed, happy, and healthy," but she did have a bruise mark on her forehead and a brush burn on her nose which the mother attributed to a fall from her stroller. M.C.O., then two months old, was observed to be "clean, well-dressed, and happy." J.O. has a criminal history and at the time had recently been released from jail.
In-home plans were put into place that required J.O. to move out of the home and prohibited him from having unsupervised contact with the children. J.O. and the mother underwent psychological evaluations by Dr. Margaret DeLong, who recommended psychotherapy (including anger management for J.O.), and couples counseling. Her report stated that J.O. had "negativistic, antisocial, and narcissistic personality traits." DYFS referred the parents to the CARRI Parenting Program, which they attended, although they did not follow up and obtain individual and couples counseling.
On December 3, 2004, DYFS found that the mother had failed to comply with the case plan and neglected the children by allowing J.O. to have unsupervised contact with the children and by failing to follow through on medical care for M.C.O. The mother consented to placing the children in foster care, which was done, and the children have remained in foster care since that time. DYFS was granted custody of the children on December 8, 2004. That same month, J.O. and the mother were forced to leave their apartment due to financial problems, and they temporarily moved in with relatives in Missouri. They returned to New Jersey about two months later, and had their first visit with the children on February 16, 2005. Shortly after that, J.O. was incarcerated for theft by deception, and he was not released until September 30, 2005. His requests to have the children visit him in jail were denied. After his release from jail, his visitation with the children was sporadic. By February 2006, the mother and J.O. had separated. J.O. was jailed again on June 20, 2006, and continued to be incarcerated at the time of the hearing.
The termination of parental rights trial began on September 19, 2006, and was concluded on January 3, 2007, after five days of trial testimony. Witnesses included Dr. Alan Gordon, a psychologist who conducted a psychological and bonding evaluation of J.O. and the children, two DYFS workers, J.O.'s probation officer, and J.O.
At trial, J.O. acknowledged that he was supposed to have attended an anger management program, couples counseling, parenting classes, and individual counseling. He did receive anger management counseling in jail, but DYFS would not accept it as meeting its requirements. J.O. also attended parenting classes, but he did not receive couples counseling or individual counseling. The record also indicates that J.O. was angry and uncooperative with DYFS workers. In his evaluation with Dr. DeLong, J.O. admitted that "I still have a problem with my anger a little bit," and he testified that he was provoked to anger in some situations. His criminal convictions include possession of a BB gun, harassment, simple mischief, simple assault, aggravated assault, possession of a handgun, theft by deception, and violations of probation. When he was a teenager, he also pled guilty to sexually abusing his younger siblings, so he is required to register as a sex offender. His last conviction for violation of probation and failure to register as a sex offender resulted in a sentence of three years in state prison.
In his report of September 5, 2006, Dr. Gordon described the relationship between J.O. and the children, S.J.O. and M.C.O., as "insecure-ambivalent." While the children had only been with the foster parents a few months at the time of the evaluation, the psychologist found the foster parents to be involved, affectionate and knowledgeable regarding the children, and he found "with a high degree of psychological certainty" that the needs of the children were being met in this home. The foster parents want to adopt the two children.
At trial, Dr. Gordon testified that J.O. "would have great difficulty parenting his children from all aspects of parenting." Dr. Gordon noted that J.O. "did not have a place of residence that would [be] appropriate for himself and his children; he certainly did not have stability in his life; [and] he has many emotional problems that should be worked through in a therapeutic milieu as to do with anger and poor impulse control." Dr. Gordon testified that he would be "fearful of children being placed in [J.O.'s] care over a lengthy period of time." Dr. Gordon expressed doubt that J.O. would be able to successfully parent the children with additional services and DYFS support, and noted that the children need stability and "it would take quite a long period of time [for J.O.] to achieve the level of stability" necessary to successfully parent the children on a long term basis "if at all possible."
In its written decision dated February 9, 2007, the trial court applied the four prong test under N.J.S.A. 30:4C-15.1(a), found that DYFS had proven all four prongs by clear and convincing ...