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Division of Youth and Family Services v. J.O.


March 18, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FG-18-105-06.

Per curiam.



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 evidence, and terminated J.O.'s parental rights.

Under prong one, the court must be satisfied by clear and convincing evidence that "[t]he child's safety, health and development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). Here, the trial court found that the parents, including J.O., had engaged in domestic violence in the presence of the children and had failed to provide a stable home for them. Further, J.O. had failed to avail himself of the counseling required to eliminate these harms.

The second prong requires a showing that "[t]he 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." Id. at 30:4C-15.1(a)(2). Here, the trial court found that the parents were unable to provide the children with a safe and stable home, and would be unlikely to be able to do so in the foreseeable future. With respect to J.O., the trial court specifically noted the fact that he was incarcerated, and stated that his plan to have the children placed with his relatives was unrealistic. As further evidence in support of this prong, the trial court noted J.O.'s criminal history, his failure to comply with counseling recommendations, his problems with anger control, his impulsive behavior, his emotional problems, and Dr. Gordon's opinion that he is unable to safely parent the children.

The trial court also found that the third prong was satisfied. That prong requires that DYFS make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and requires the court to "consider[] alternatives to termination of parental rights." Id. at 30:4C-15.1(a)(3). Among its efforts, DYFS referred J.O. to appropriate counseling programs, including anger management, and arranged for him to attend a parenting skills program.

The trial court also found that the fourth prong was satisfied, namely, that "[t]ermination of parental rights will not do more harm than good." Id. at 30:4C-15.1(a)(4). The bonding evaluation showed that the children had an insecure bond with J.O. At the time of the hearing, J.O. was unavailable to the children due to his incarceration. In addition, his sentencing report indicated that he had a potential for recidivism. The children were "together in a loving and caring home that looks forward to adopting them."

J.O. appeals the termination of his parental rights, contending that DYFS has failed to prove by clear and convincing evidence that the four prongs have been met and that the termination of his parental rights is in the best interests of the children. He further maintains that he was denied effective assistance of counsel during the termination hearing.

The scope of our review of the trial court's decision to terminate parental rights is limited. We will not overturn 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." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In a case in which the evidence is largely testimonial, we give special deference to the findings of fact of the trial judge, since he is better able to determine the credibility of the witnesses due to his opportunity to hear and observe their testimony. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). Further, we must accord deference to the family court's findings of fact due to its special expertise in this kind of litigation. Cesare v. Cesare, supra, 154 N.J. at 413. "Appellate review of a trial court's decision to terminate parental rights is limited and the trial court's findings 'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

We note that the four prongs set forth in N.J.S.A. 30:4C-15.1(a) must be proven by DYFS by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). These four elements "overlap and provide a comprehensive standard for deciding what is in a child's best interest." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003)). The four prongs "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. F.M., supra, 375 N.J. Super. at 258). The four prongs are intended "to identify and assess what may be necessary to promote and protect the best interests of the child." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007)). The courts recognize that these determinations are "extremely fact sensitive." Ibid.

Indeed, our careful review of the record reveals credible evidence to support the trial judge's findings that all four prongs set forth in N.J.S.A. 30:4C-15.1(a) have been met by clear and convincing evidence, and that termination of the parental rights of the father, J.O., is in the best interests of the two children, S.J.O. and M.C.O.

We next address J.O.'s argument that he is entitled to a new trial due to ineffective assistance of counsel pursuant to N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007). In B.R., the Supreme Court adopted the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) to determine ineffectiveness of counsel. N.J. Div. of Youth & Family Servs. v. B.R., supra, 192 N.J. at 308-09. The party claiming ineffective assistance of counsel must demonstrate that (1) counsel's conduct "fall[s] outside the broad range of professionally acceptable performance" and that (2) the deficiency in counsel's performance must have prejudiced the defense, so that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 307. The claim of ineffective assistance of counsel must be raised on direct appeal in a termination of parental rights case. Id. at 311.

J.O. claims that his trial attorney's performance was deficient because he failed to "flesh out the argument that J.O. did not cause physical or emotional harm to his children" by cross-examining caseworkers on documents in the record. J.O. also contends that defense counsel failed to show that problems with the children developed only after they were in foster care, that the parents were not terminated from the parenting program, and that J.O. was taking medication to control his anger.

Trial counsel did argue that J.O. had not harmed the children, and in particular, that the domestic violence between the parents had not harmed them. All of the evidence that defendant argues should have been highlighted by defense counsel was in the record before the trial court. Further, we are not convinced that counsel's failure to emphasize this evidence through cross-examination would have changed the result. None of this evidence would overcome the conclusion that the termination of J.O.'s parental rights is in the best interests of the children, for all of the reasons set forth above, including J.O.'s criminal record and history of incarceration, his potential for recidivism, his anger and impulse control issues, his history of domestic violence, his failure to obtain the recommended counseling, his lack of a bond with the children, and Dr. Gordon's opinion that the children should not be placed with him. For all of these reasons, we find no merit in the ineffective assistance of counsel argument.



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