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New Jersey Division of Youth and Family Services v. R.C.


May 5, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-62-06B.

Per curiam.



Submitted April 21, 2008

Before Judges S.L. Reisner, Gilroy and Baxter.

R.C., Sr., the biological father of six-year-old R.C., Jr., appeals from the January 31, 2007 order that terminated his parental rights to his son, pursuant to N.J.S.A. 30:4C-15(d). The order in question awarded guardianship of R.C., Jr. to the Division of Youth and Family Services (DYFS) so that adoption proceedings could commence. The order in question was entered as the result of a remand from this court. We reversed the judge's dismissal of the guardianship complaint and directed the court to conduct a plenary hearing and determine whether R.C., Sr.'s conduct amounted to abandonment of his son, such that his parental rights should be terminated. Div. of Youth & Family Servs. v. R.C., Sr., A-5673-05 (Appellate Division, December 15, 2006). On remand, the Family Part terminated R.C., Sr.'s parental rights and he appealed. We affirm.


A brief review of the testimony elicited at the original hearing in the spring of 2006 is necessary in order to provide context for our decision. DYFS's involvement with R.C., Sr. and D.C., the child's mother,*fn1 began in July 2003 when DYFS received a referral alleging that D.C. had beaten R.C., Jr. with a belt. Although that complaint was ultimately not substantiated, DYFS was granted care and custody of R.C., Jr. in July 2003 based on evidence of lack of supervision of R.C., Jr., domestic violence, and alcohol and drug abuse. After R.C., Jr. was removed, DYFS established a visitation schedule for one hour every other week between R.C., Sr. and his son. When the DYFS caseworker called R.C., Sr. on July 21, 2003, to tell him his first visit with R.C., Jr. was scheduled for the next day, he cursed at her and hung up the phone. Nor did he appear for his next scheduled visit on August 7, 2003.

On August 21, 2003, R.C., Sr. came to the DYFS office for his scheduled visit, but was told by the caseworker that his son had been moved into a foster home and the visit had to be rescheduled for August 26. He told the caseworker that his mother and girlfriend in Canada might be placement resources, but he wanted to think about it a little more before he provided the names. He also told the caseworker that he was not obliged to comply with the court order that required him to attend anger management counseling. Not until August 26, 2003, did R.C., Sr. have his first supervised visit with his son. He failed to appear for the next scheduled visit on September 9, 2003. In October, R.C., Sr. did not arrive on time for visits with his son, sometimes left early and fell asleep once. Also, his interactions with R.C., Jr. during those visits were usually initiated by the child.

When a caseworker tried to schedule an inspection of R.C., Sr.'s home in May 2005, R.C., Sr. told her that if she came near his home, she better bring police officers with her. That same caseworker also testified that R.C., Jr. had bonded with his foster parents and had no behavioral problems.

Because of R.C., Sr.'s lack of cooperation and his apparent lack of interest in his son, DYFS filed a guardianship complaint on September 29, 2005. At trial, although DYFS chose not to call Dr. Robert Puglia, Ph.D., as a witness or rely on his conclusions, the court considered the findings that were contained in his report. Puglia recommended reunification of R.C., Sr. with his son.

The judge concluded that DYFS's removal of R.C., Jr. in July 2003 was unwarranted and that R.C., Sr.'s antagonistic attitude and lack of cooperation with DYFS was consequently understandable. The judge also found that DYFS failed to prove both that it had made reasonable efforts to provide services to R.C., Sr. and that termination of R.C., Sr.'s parental rights would not do more harm than good. Accordingly, on May 25, 2006, the judge dismissed the guardianship complaint and directed DYFS to prepare a reunification plan. However, in rendering his opinion, the judge included the following warning to R.C., Sr.:

This court is mindful of [R.C., Sr.]'s belief, expressed at trial, that according to his upbringing in Haiti and his religion, his child [R.C., Jr.] should be raised by his biological mother. Since this court has terminated [D.C.]'s parental rights to [R.C., Jr.], [R.C., Sr.]'s persistence and inflexibility on this issue may eventually defeat his reunification with [R.C., Jr.].

However he will be given the opportunity to demonstrate that he is able to provide for and parent [R.C., Jr.].

DYFS appealed the May 25, 2006 order that dismissed its guardianship complaint. On appeal from that order, our review of the record that was established during the May 2006 proceedings led us to conclude that:

R.C., Sr. has, over the years, effectively abandoned his son essentially due to his belief that R.C., Jr. should be cared for by either his biological mother or perhaps, another woman. We have grave concerns that R.C., Sr.'s new plan, which apparently envisions care of his son by a woman whose location is unknown to him and from whom he has been separated for a significant period, is a continuation of his attempt to pawn R.C., Jr. off to a woman and avoid his responsibility as a custodial parent. We also have serious reservations respecting the trial judge's determination that DYFS had not proven the first three prongs of the best interest test by clear and convincing evidence.

R.C., Jr. has been in foster care since August 2003. R.C., Jr. received counseling until May 2005, when he was reunited with C.C.*fn2 in a foster home in Trenton. C.C. expressed his wish to be adopted by his foster parent, however, the possibility of adoption was never discussed with R.C., Jr. due to his young age. R.C., Jr. did state, however, that he wanted to be with C.C. and that "[w]herever his brother goes, that's where [he] wants to be." R.C., Jr. was reported to have bonded with his foster parent and his behavioral problems "literally disappeared within a month from the time" he arrived at the foster home.

Also, the foster parent has expressed a desire to adopt both C.C. and R.C., Jr. According to DYFS, it is in R.C., Jr.'s best interest to be adopted by his foster parent because "[h]e's happy. He's nurtured. He's encouraged. . . . [H]e has . . . other sisters and brothers. . . . He has all his needs met. There is no violence in the home. . . . Everything is provided for and then some." [R.C., Sr., supra, slip op. at 6-7.]

Accordingly, on December 15, 2006, we vacated the dismissal of the guardianship complaint and remanded the matter "for a determination as to whether R.C., Sr.'s continued conduct defeats reunification and supports termination of his parental rights." Id. at 8. This court "direct[ed] the trial judge to . . . hold a plenary hearing and determine anew whether R.C., Sr.'s conduct amounts to an abandonment of his son, such that his parental rights should be terminated." We directed the trial judge to make his determination within forty-five days. Trial Court's Remand Hearing.

At the beginning of the remand trial, counsel for R.C., Sr. requested additional time to prepare for the case and retain an expert witness. The judge denied this request because he was obliged to complete the remand proceedings within forty-five days. The judge advised counsel to file a motion with the Appellate Division for additional time. No such motion was filed.

At the remand hearing, the following witnesses testified: Charles Crudup, the assigned DYFS caseworker; Dr. Margaret Beekman, a psychologist; and R.C., Sr. Crudup testified to his extensive efforts in contacting T.M., the mother of one of R.C., Sr.'s other children, to set up home visits and discuss R.C., Sr.'s plan for reunification, which at the time, entailed R.C., Jr. residing with T.M. Crudup testified to the following: for over a month, between August and September 2006, he had left a series of messages for T.M. on her cell phone, but T.M. had not responded to these messages; on October 20, 2006, T.M. had accompanied R.C., Sr. to a visit, but failed to take that opportunity to meet with him to discuss their plans for R.C., Jr. to reside with T.M.; on December 8, 2006, he had sent a letter to T.M. by regular and certified mail, asking that she immediately contact DYFS regarding the plan of R.C., Sr., and that although a signed certified mail receipt was returned to DYFS, he never received a response; he had attempted to visit T.M. in July and December 2006, to no avail; and that in his opinion, T.M. was not a viable reunification option.

Crudup also testified that on January 12, 2007, five days before the remand hearing, he was contacted by court staff and was informed that R.C., Sr. had a new plan, in which R.C., Sr. would care for R.C., Jr., and both would live in an apartment in Asbury Park. Crudup, however, did not view R.C., Sr. as a viable placement option for R.C., Jr. because R.C., Sr. had no job, had planned to allow his fourteen year-old daughter to baby-sit for R.C., Jr., and could not explain how he would pay for his apartment. R.C., Sr. proposed that R.C., Jr. would attend school in Lakewood because he had business in Asbury Park and did not want any retaliation against his son; however, R.C., Sr. was not a resident of Lakewood.

Beekman testified as to her observations and conclusions based on a bonding evaluation of R.C., Jr., his half brother C.C., and their foster mother. Consistent with her report, Beekman testified that she observed R.C., Jr. appropriately interact with C.C. and the foster mother in a good-natured manner, and that he appeared happy, was praised, and frequently smiled at both his brother and foster mother. Beekman opined that R.C., Jr. has a very strong bond to his foster mother and sees her as his psychological parent.

When asked for her recommendation concerning R.C., Jr.'s future placement, Beekman testified:

From a bonding perspective, permanent placement was recommended with his caretaker and brother. I presented that as the least harmful alternative since at this age continued lack of permanency has been associated with poor outcomes for children who remain in the foster system.

It was my further opinion that removal from the care of the foster parent and his brother [C.C.] was likely to cause traumatic and enduring harm to [R.C., Jr.] particularly since [R.C., Jr.] seems to see [C.C.] . . . as a source of security.

Moreover, when asked whether R.C., Jr. has any risk factors in terms of his future psychological well-being, Beekman testified that:

I identified . . . three risk factors from the records. And those were being subjected [to] . . . physical abuse and neglect, apparently including neglect at the hands of R.C., Sr.

Secondly, that he had at least one parent with a substance abuse problem so that statistically puts him at risk himself to becoming a substance abuser.

And always when a child is removed from their primary care-taking environment, that removal increases the risk in and of itself.

So he is at risk, at increased risk for social, educational[,] and psychological difficulties as he gets older. And therefore requires a lot of stability, nurturing[,] and a consistent environment in order to reduce the potential for future negative impact of the above risk factors.

Beekman also had an opportunity to speak with R.C., Jr. She testified that R.C., Jr. said "he most wanted to live with his mom . . . [,] agreeing that he was referring to the foster mother," and "that he remembered living with his real mom, [D.C.], and he said he remembered living with someone he referred to as daddy."

When asked whether R.C., Jr. could maintain a sense of security and stability through a pattern of visitation with C.C. and his foster mother, Beekman testified that "would be very traumatic if he was removed from his current home and separated from his [half] brother," that "the removal from his current environment would be traumatic both on the long term and the short term. It could be ameliorated to some degree if he was placed in a home that provided the consistency, stability[,] and nurturing that he needs."

R.C., Sr. testified as follows: his plan was to care for R.C., Jr. himself because that was the only alternative to T.M. caring for R.C., Jr.; he had secured an apartment, but could not move in until the landlord obtained a certificate of occupancy; the rent was $1,200 a month; he was no longer employed at any of his prior places of employment and would be relying on future unemployment benefits, possible work from his landlord and possible work at a restaurant; his fourteen year-old daughter and F.R., a care giver who is certified,*fn3 would be providing baby-sitting services for R.C., Jr.; and he had two cabs available to drive for income, but he had no drivers and had earned no income since voluntarily walking off his last job.

When he was questioned about his plan to take C.C. along with R.C., Jr. into his home, R.C., Sr. testified that he had developed this plan as he was walking into the courthouse. He added that he makes plans "every [ten] seconds like the DMV in your country [] . . . . This is [R.C., Sr.] I make plan in [ten] seconds, every [ten] seconds of my life is a plan coming up." When questioned as to why he would send R.C., Jr. to school in Lakewood even though he intended to reside in Asbury Park, R.C., Sr. testified that "I don't want my son to go to Asbury Park school just to (inaudible) welfare insurgency to kidnap my son," describing the insurgents as the "welfare system."

R.C., Sr. also testified that: he does not keep a cellular phone, "[b]ecause I have them when I need them. When I'm finished with them, I throw them in the garbage so I can have another one tomorrow;" in an emergency someone can contact him on the "job['s] cellular phone," however, right now he is not employed; he does not remember the last time he saw R.C., Jr.; and when he left his job at the Getty station, on December 31, 2006, he did not notify Crudup, even though that was the location to which R.C., Jr. would be brought for visitation with him.

Trial Court's Decision Following the Remand Hearing

Following the remand hearing, the trial court terminated R.C., Sr.'s parental rights to R.C., Jr. The trial judge reasoned:

[W]hen this [c]court dismissed the guardianship complaint in May 2006, it did so because it believed the Division did not prove the four prongs of the best interest case. The matter has been sent back. And since the time of this [c]court's decision in May 2006, [R.C., Sr.] has done nothing to provide for his son. He has shown no interest in providing for his son. He has shown nothing but defiance towards DYFS's efforts to reunite him with his son. And his conduct from that point forward does constitute an abandonment of his son such that his parental rights should be terminated.

Again, [R.C., Sr.] has been given every opportunity in the world by [DYFS] to take steps to reunify with his son. And for whatever reason, he has viewed DYFS as the enemy. He has refused to cooperate with them, he has refused to stay in touch with them, and he has treated them with contempt at every turn.

For this reason, the [c]court finds that the child [R.C., Jr.] has already suffered by the delay in permanent placement. He has been in foster care for over two years. His foster parents are interested in adopting.

The [c]court accepts the testimony that he is thriving in his current placement, and any further delay in this child's permanent placement will result in further harm to [R.C.], Jr. And the authority for this is In re Guardianship of K.H.[O]., [] 161 N.J. 3[3]7 [(1999)]. [(emphasis added).]

The judge accepted the findings made by Beekman in her December 6, 2006 bonding evaluation. Specifically, the judge referred to: Beekman's observation that "[R.C., Jr.] refers to the foster mother as mommy [and] gets along very well with his half brother [C.C.]"; her opinion "that [R.C., Jr.] requires a very stable, nurturing[,] and consistent environment in order to reduce the potential future negative impact"; her conclusion "that [R.C., Jr.] sees the foster mother as the psychological parent and that her behavior was protective, nurturing, affectionate[,] and appropriate"; her opinion that "removal from the care of the foster parent and the brother is likely to cause traumatic and enduring harm to [R.C., Jr.], particularly since [R.C., Jr.] seems to see [C.C.] as a source of security." The court accepted Beekman's conclusions and adopted them, and "as a result[] terminat[ed] the parental rights of the biological father [R.C., Sr.]."

On appeal, R.C., Sr. presents the following claims:











In Point I.(E), R.C., Sr. asserts that the trial court erred when it terminated his parental rights because "DYFS did not establish by clear and convincing evidence any of the elements of N.J.S.A. 30:4C-15.1 and N.J.S.A. 30:4C-15(d) at either the initial trial or the remand trial." We evaluate his contentions in light of our scope of review.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The "abandonment standard," N.J.S.A. 30:4C-15(d), considered by us and by the trial court on remand, provides that termination of parental rights is authorized where: it appears that a parent . . . following the placement or commitment of such child in the care of an authorized agency, whether in an institution or in a resource family home, and notwithstanding the reasonable efforts of such agency to encourage and strengthen the parental relationship, has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwithstanding the division's reasonable efforts to assist the parent or guardian in remedying the conditions[.] [N.J.S.A. 30:4C-15(d).]

This provision has been characterized as an abandonment standard, requiring a finding that "a parent has willfully forsaken obligations, although physically and financially able to discharge those obligations." In re Adoption of Children by L.A.S., 134 N.J. 127, 134-35 (1993). The Court in In re Guardianship of D.M.H., 161 N.J. 365 (1999), elaborated on the proofs DYFS is required to present:

[A]bandonment can be established if the parent has "engaged in a course of conduct that 'evidences a settled purpose to forgo all parental duties and relinquish all parental claims to the child.'" As this Court explained in In re Guardianship of J.C., "[t]he concept of abandonment entails volitional and purposeful conduct that equates with a willful giving up of parental rights and duties." Thus, abandonment may not be based on parental conduct that is only uncertain, ambivalent or equivocal in fulfilling parental duties. [Id. at 376-77 (citations omitted).]

Here, the trial judge concluded that although DYFS had given R.C., Sr. every opportunity to visit with his son, he had failed to take any meaningful steps to provide for reunification. In addition, the judge found that the reunification plan advanced by R.C., Sr. was not viable, but rather was illegal because R.C., Sr. was proposing to live with R.C., Jr. in Asbury Park but send him to school in Lakewood.*fn4

Moreover, R.C., Sr. had repeatedly changed his cell phone number knowing that DYFS was trying to contact him to arrange visitation, demonstrating that he was not making any meaningful effort to reunite with his son. These reasons, and the numerous incidents when R.C., Sr. either missed or was late to visit R.C., Jr., "entail[] volitional and purposeful conduct that equates with a willful giving up of parental rights and duties," constituting abandonment of R.C., Jr. In re Guardianship of J.C., 129 N.J. at 1, 17 (1992). That abandonment continued for at least one year.

In addition to requiring DYFS to prove abandonment, the statute requires proof that the parent was "physically and financially" able to ameliorate the conditions that led to removal. N.J.S.A. 30:4C-15(d). Here, we are satisfied that the record contains evidence to satisfy that standard. R.C., Sr. signed an apartment lease obligating him to pay $1,200 per month, he owns two taxi cabs from which he can derive income and he claims to have so much money that he can "throw [cell phones] in the garbage so I can have another one tomorrow." Accordingly, we conclude that the trial judge correctly determined that DYFS satisfied the elements of N.J.S.A. 30:4C-15(d) by clear and convincing evidence.


In Point I.(A) through 1.(D), R.C., Sr. argues that the trial court improperly permitted him to proceed without counsel during the first trial in 2006 and unfairly hampered his lawyer's ability to effectively prepare for the proceedings upon remand.

R.C., Sr., in pertinent part, contends that the trial judge failed to insure that: he, as a pro se litigant, was made aware of the "dangers inherent" in appearing pro se; the appellate court's "new allegations" of abandonment "eviscerated [his] right to notice and opportunity to be heard;" and that the trial court's denial of an adjournment, on remand, to "allow him to obtain an expert to counter Dr. Beekman's testimony was error." We disagree.

R.C., Sr. relies upon State v. Crisafi, 128 N.J. 499 (1992), in support of his contention that in the May 2006 trial he did not make a knowing and voluntary waiver of his right to counsel. In Crisafi, the Court held that a trial judge should consider the defendant's particular facts and circumstances, including his background and experience, in order to evaluate a waiver of counsel. Id. at 513. Although Crisafi involved a criminal matter, it is clear that parents who face the potential loss of custody of their children or their parental rights have a constitutional and statutory right to representation by counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007).

During trial, on February 26, 2006, R.C., Sr. was asked:

Court: Sir, do you understand what's going on here? [R.C., Sr.]: I understand what's going on clearly judge.

Court: What I need to know from you is whether you are going to continue to represent yourself in this matter. You had talked about hiring a lawyer and you're here today without a lawyer.

[R.C., Sr.]: No, Judge.

The Court: You have been offered an opportunity to have a lawyer appointed for you and you have declined.

[R.C., Sr.]: No, Judge, I don't want no lawyer.

The Court: You do not want a lawyer.

[R.C., Sr.]: No.

The Court: And you are not going to hire a lawyer, is that correct?

[R.C., Sr.]: No, Judge.

The Court: You're going to represent yourself.

[R.C., Sr.]: 100 percent.

In this case, there is no evidence that R.C., Sr. was unfamiliar with what was at stake during the guardianship trial. He had attended all of his court hearings and had been previously represented by an attorney. We need not decide whether R.C., Sr.'s waiver of counsel in the May 2006 proceedings was knowing and voluntary. This issue should have been raised by cross-appeal in that proceeding, rather than being advanced for the first time now.*fn5 Nonetheless, even if we consider the argument here, it has no merit.

Next, R.C., Sr. argues that he was denied effective assistance of counsel on the remand hearing because his counsel was not "thoroughly familiar with the facts of []his case," and the trial court's denial of an adjournment, on remand, to "allow him to obtain an expert to counter Dr. Beekman's testimony was error."

To successfully assert ineffective assistance of counsel, R.C., Sr. must prove, consistent with Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), that 1) counsel's performance is objectively deficient, and 2) counsel's deficient performance prejudiced his defense, i.e. there must be a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. See B.R., supra, 192 N.J. at 307. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. "In Strickland, [] the United States Supreme Court explained that in addition to being 'highly deferential,' 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" B.R., supra, 192 N.J. at 307 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 695). "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid.

Here, R.C., Sr.'s counsel requested a thirty-day postponement of the hearing to review the file and hire an expert. The trial judge, referencing this court's December 15, 2006 order, stated that "the Appellate Division requires not the completion of this trial within 45 days, but [rather] this [c]court's determination of the outstanding issues within 45 days. Therefore, . . . I am not able to grant your request for additional time because that would put us outside of this 45 day period." The trial judge did advise R.C., Sr.'s counsel that "[she] may . . . apply directly to the Appellate Division for additional time." R.C., Sr.'s counsel never applied to this court for an extension of time.

Even if counsel's performance, in not applying to the appellate panel for additional time were to be found deficient, R.C., Sr.'s claims fail under the second prong because he has still failed to demonstrate how it prejudiced his defense, i.e. what his expert would have testified to and how it would have had "a reasonable probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Consequently, there is no basis for concluding that "there is 'a reasonable probability . . . the result of the [trial] would have been different'" if R.C., Sr.'s counsel had had more time to become familiar with the record and to obtain an expert. See State v. Arthur, 184 N.J. 307, 325 (2005) (quoting State v. Fritz, 105 N.J. 42, 52 (1987)).

Moreover, even if R.C., Sr.'s application for more time was denied in error, that error was harmless. R. 2:10-2. Rule 2:10-2 states in pertinent part that "[a]ny error or omission shall be disregarded by the appellate court unless it is such a nature as to have been clearly capable of producing an unjust result . . . . " The scope of our remand was limited. We directed the trial judge to determine "whether R.C., Sr.'s continued conduct defeats reunification and . . . whether R.C., Sr.'s conduct amounts to an abandonment of his son, such that his parental rights should be terminated." We directed the trial judge to evaluate whether R.C., Sr., between May 2006 and January 2007, reversed course and established a home for his son, developed a reunification plan and accepted services from DYFS. A bonding evaluation from R.C., Sr. would have exceeded the scope of that remand order. Moreover, such an evaluation would, in all likelihood, have been of little value. The evidence on remand demonstrates that R.C., Sr. abandoned his son, lacks the ability and the desire to plan for his son's care and is unable to implement whatever spur-of-the-moment plans he may conceive, even if such plans were to be positive. Under such circumstances, if there was error, it was unquestionably harmless. See R. 2:10-2.

The balance of R.C., Sr.'s contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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