On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-62-06B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...